January 22, 2016
There is widespread agreement that the Citizens United decision was a disaster for democracy, but little clarity as to what to do about it. Several solutions have been suggested. The obviously preferable but perhaps impractical one is to wait for the Court to reverse itself. It might well do so at some point, possibly in the foreseeable future; the decision, in addition to being illogical and bad policy, was decided 5-4. At the next inauguration, four Justices will be at an age suggesting retirement: Ginsberg will be 83, Scalia 80, Kennedy 80, and Breyer 78. Then there is a gap of ten years in age. The elderly four split evenly on Citizens United, Scalia and Kennedy pro, the others anti. If and it’s a large if, a Democrat reaches the White House, and the conservative retirements equal the liberal, that decision might be revisited. Not surprisingly, opponents aren’t counting on that.
A second suggestion is that Congress could solve the problem, based on a provision of the Constitution dealing with the Supreme Court. Article III, Section 2 sets out the subject-matter jurisdiction of the federal courts. It provides further that the Supreme Court shall have original jurisdiction over a limited range of subjects, and then adds: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make." It is argued that this language empowers Congress to remove from the Court jurisdiction over the financing of election campaigns.[4] (The removal only could be effective as to appellate jurisdiction, but that would be enough, as campaign finance isn’t included in the subjects over which the Court has original jurisdiction. The article cited does not make that clear). Whether that device would be effective may be in doubt, but even if valid it is a dangerous approach, as it subjects every decision to political cancellation. Also, how likely is it that Congress will so act? We might as well wait for retirements on the Court.
Another proposal is to defy the Court, by adopting legislation contrary to the Court’s ruling, and daring it to reverse again. The author of this plan acknowledges that it risks "a constitutional crisis if the executive branch chose to enforce the law despite the Supreme Court’s contrary opinion."[5] That doesn’t seem a sensible approach.
The most popular solution is a Constitutional Amendment. I dislike this approach because, as with the second suggestion, of the potential for abusing the method, cluttering the Constitution with issues which should have been resolved elsewhere. However, if change there is to be, and we don’t simply wait, this is probably the best among unattractive options. That brings us to the question of what the proposed amendment should say.
Among the many political e-mails I receive, there are two which propose an amendment, and ask for donations in support, but do not set out a text or even describe the theory it will follow. One of the messages has been coming for some time now. I have sent e-mails twice to its contact address, requesting the text; there have been no answers. The appropriate content of an amendment is not a given, so this is an opaque approach to winning support. (There are two others which advocate action to overturn Citizens United and ask for donations without stating in any way what they intend to do, which is even more mysterious).
Discussion of the case, and of the content of an amendment, has been distorted by misunderstanding of what Citizens United held. It did not hold that corporations are people, but many seem to think that it did. Corporations are legal persons, but that is old law; it was not invented by Citizens United. It did not establish that corporations have first Amendment rights of speech; that too has been around for some time, although the opinion went some distance toward removing any limitations on that concept. Because of the confusion, some proposals are misdirected.
There is an initiative circulating in Washington which has that fault. It asks the Washington delegation to Congress to propose an amendment "clarifying that: 1. The rights listed and acknowledged in The Constitution of the United States are the rights of individual human beings only." The problem with this approach is that, in addition to free speech, there are Constitutional rights which corporations do and arguably should enjoy, such as certain due process protections. Certainly if any such rights are to be removed, it should not be by a blanket declaration such as that above. However, recognizing corporate rights should not mean, as the Court seems to think, that rules cannot be made for such entities which differ from those applying to individuals.
The Washington initiative has one pertinent finding of fact: "Money is property; it is not speech." All of the problems created by Citizens United would have been avoided if the Court had mastered that concept. In addition to limiting rights to natural persons, the initiative proposes this: "2. The judiciary shall not construe the spending of money to be free speech under the First Amendment of The Constitution of the United States." That is more to the point. (A website, "Move to Amend," has the same pair of aims: "amend our Constitution to firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights.")[6]
Another proposal is a constitutional convention.[7] The Constitution, in Article V, provides two methods of amendment: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . ." The latter method is advocated. However, the states need not have the same amendments in mind, so the discussion might be unfocused, and the prospect of a runaway convention, with all manner of notions suddenly becoming Constitutional material, is enough to disqualify this approach.
An amendment dealing with the money issue, proposed by members of Congress and adopted by it, is the better option. An amendment sponsored by Senator Udall, among others, provided that:
Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits on (1) the amount of contributions to candidates for nomination for election to, or for election to, Federal office; and (2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.
It granted the same authority to states regarding state offices. The amendment was rejected by the Senate in 2014. Because of the requirement of a two-thirds vote in each chamber, passage of such an amendment doesn’t seem likely unless there is political pressure and, better yet, a change in the makeup of the Congress.
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4. Here is one such argument:
5. http://billmoyers.com/story/we-can-do-this-america-seven-steps-to-reversing-citizens-united/
7. See the article referred to at footnote 2, and http://www.wolf-pac.com/the_plan. Neither sets out a text.
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