Why Overturning Citizens United Is Not Enough

07/18/2016 11:27 am ET Updated Aug 13, 2016
Photo Credit: speaker.gov

If you were excited when Hillary Clinton pledged to introduce a constitutional amendment to overturn Citizens United you were not alone. Since the Supreme Court’s infamous 2010 decision, the phrase “overturn Citizens United” has become an all-purpose tool―a rallying cry, an easy applause line, and a way for organizations to fundraise even if there isn’t a real plan behind their rhetoric. Saying you want to overturn Citizens United has become synonymous with saying you want big money out of politics. The problem is that overturning Citizens United will not accomplish that goal.  

While we should be thrilled to be on the verge of passing a historic constitutional amendment, we must also realize that we cannot settle for just any amendment. Our campaign finance problems began well before Citizens United with decisions like Buckley v. Valeo and continued after with McCutcheon v. FEC. As a result, merely overturning Citizens United is not enough to regain control of our corrupt campaign finance system. 

For decades Congress and state legislatures―the bodies that represent We The People―have tried to enact meaningful campaign finance reforms only to be thwarted by the Supreme Court time and again. Limits on independent expenditures and a candidate’s own spending were struck down in Buckley. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett the Court struck down a matching funds system for publicly financed elections. And in McCutcheon the Court gave ultra-wealthy individuals even more political power by striking down aggregate contribution limits. 

Our campaign finance system is not corrupt because of any one bad decision. It is corrupt because nine unelected judges have repeatedly struck down laws designed to protect the integrity of our democracy. As the Court’s majority shockingly admitted in McCutcheon, their focus is, “on an individual’s right to engage in political speech, not a collective conception of the common good.”

So if we truly want big money out of politics we must do more than simply overturn the Court’s most infamous decision. We must pass a constitutional amendment that shifts the balance of power back from the Supreme Court to We The People so that we can enact meaningful campaign finance reforms. That’s why we need the Restore Democracy Amendment.

Though many amendment proposals have been offered since 2010, only the Restore Democracy Amendment is powerful enough to be worth the effort and clear enough to actually succeed. When ratified, it would instantly overturn Citizens United and declare once and for all that Congress and the States have the power to place limits on contributions and expenditures in connection with elections and initiatives. Passing the Restore Democracy Amendment would not only push big money from corporations and unions to the sidelines; it would pave the way for even greater reforms in the future.

Other amendment proposals would either not accomplish both goals or they would go so far that determining their impact would potentially lead to another slew of unwelcome Supreme Court decisions. For example, the Democracy For All Amendment would shift power back to Congress and state legislatures, but it would not overturn Citizens United, which seems unnecessarily timid.

On the other hand, the We The People Amendment and Bernie Sanders’ proposal go much farther. The first attempts to completely end corporate personhood and the second would prevent corporations from spending any money that can even influence an election, whatever that means. While both proposals are undoubtedly well intentioned, untangling their consequences could take decades and their vagueness makes them easy to attack. And any proposal to strip away all corporate constitutional rights is unlikely to be supported by many Republicans.

I wrote the Restore Democracy Amendment because I believe we need an amendment that is powerful enough to matter and clear enough to avoid a bevy of unintended consequences while having enough bipartisan appeal to actually succeed. It would be a tragedy for Clinton to propose an amendment that isn’t passed or for Congress to pass an amendment that isn’t ratified by the necessary thirty-eight states.

So while those of us who desperately want big money out of politics should rejoice at Clinton’s announcement, we also cannot afford to sit back and leave things to chance. Overturning Citizens United is not enough. We must unite behind an amendment proposal that makes an even greater impact. The Restore Democracy Amendment is our best bet.  

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