“Fixing” Citizens United Will Break the Constitution

Originally posted on The Huffington Post.

In “Fixing Citizens United,” Professor Geoffrey Stone—usually a friend to the First Amendment—argues for a constitutional amendment to “fix” the Citizens United Supreme Court decision. Professor Stone mentions the proposal rather offhandedly, but the idea is a nuclear option. A constitutional amendment—specifically an amendment limiting the right to political speech—would fundamentally “break” the Constitution and endanger civil rights and civil liberties for generations.

First, it’s important to be clear on what Citizens United did. The case allowed corporations and unions (including non-profit corporations like the ACLU or National Rifle Association) to spend “general treasury” (non-political action committee) funds on political communications that are not coordinated with a campaign. Citizens United itself has very little to do with the dreaded “Super PACs,” which are primarily funded by individual donations. Individuals have been allowed to spend their own money on political speech since time immemorial (or at least since adoption of the First Amendment). Further, Citizens United has nothing to do with direct contributions to candidates, which are still totally verboten for corporations and unions and strictly limited for individuals.

With that background, here’s the proposed amendment.

In order to ensure a fair and well-functioning electoral process, Congress and the States shall have the authority reasonably to regulate political expenditures and contributions.

When Professor Stone says federal and state governments “shall have the power to regulate political expenditures,” he means to give them the ability to place limits on, and control the content of, political speech, even when it is non-partisan and independent of a campaign. This speech would include typical “vote for X” ads, but would also extend to political “issue” advertisements (“call Senator Reid and tell him to support bill Y”), documentaries by Michael Moore and other political filmmakers and probably even social media platforms like Twitter or Facebook. The problems with such an approach are many.

The Constitution’s radical stability is its greatest strength. The high bar for amending the Constitution—agreement by two-thirds of both the Senate and the House (or the states), and then three-fourths of state legislatures or constitutional conventions—exists precisely to deter ill-considered but temporarily popular amendments, which I would argue this is. People are wary to invest resources and time in promoting or championing constitutional amendments because the chances of failure are high. That’s why our Constitution works so well. It’s easy to interpret broadly, but textual change requires effort and sustained support. 

Clearly cognizant of this particular concern, Professor Stone suggests that his amendment would not be unprecedented. On the contrary, while not the first amendment responsive to a Supreme Court case, this would be the first amendment in history to limit individual, constitutionally guaranteed rights. The four amendments he mentions as precedent all either clarified the scope of existing constitutional provisions or expanded individual rights. For the curious, I believe the amendments he is referring to are the 11th (states can’t be sued by people in federal court), 14th (expanding equal protection and due process rights in the wake of the Civil War), 16th (federal income tax not unconstitutional) and 26th (voting age no higher than 18).

Further, although success of an amendment limiting individual rights is thankfully unprecedented, proposed amendments certainly are not. 

The ACLU has been on the (often lonely) frontline against ill-considered but temporarily popular constitutional amendments to limit civil liberties since its inception. For 20-plus years, we’ve been fighting amendments prompted by Supreme Court decisions in United States v. Eichman and Texas v. Johnson, which held unconstitutional state and federal laws banning flag desecration. We’ve repeatedly opposed the “Victims’ Rights Amendment,” which would unfairly limit certain due process rights, including the right to a fair trial. And (this is the best), Republicans today are calling for an amendment repealing the 14th Amendment’s guarantee of citizenship if you are born in the United States. Some grotesquely call it the “anchor baby” amendment.

Now imagine a world where Stone’s proposed Citizens United amendment serves as real precedent for using the amendment process to limit rights, and both houses of Congress are two-thirds Republican (the latter is not inconceivable even in the next Congress). Flag desecration, victims’ rights and birthright citizenship amendments would just be the beginning. Undoubtedly, you would see additional attempts to limit individual rights through the amendment process simply on the strength of the argument: well, we did it with political speech, why not with pornography, affirmative action, voting requirements, warrantless national security surveillance or any other similarly hot-button issue? You can bet a successful Citizens United amendment would be talking point number one for groups pushing an amendment to overturn Roe v. Wade.

Reasonable minds can and should differ on the influence of “big money” in politics. The legal and policy questions raised by the link between concentrated wealth and political speech are numerous and complicated. We should be discussing the health of our politics, and we should be doing more to, for instance, provide for public financing and promote transparency without quelling anonymous speech. But if there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally “break” the Constitution.

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lostonlaw

Please forgive the naiveté of my comments as I am not part of the legal profession and my only experience with ‘law’ is trying not to run afoul of ‘it’. And while I appreciate and agree with the ACLU’s proclaimed charge of protecting an individual’s civil rights and defending equal protection under the law, I personally believe any effort to oppose legislation removing or severely limiting these rights for businesses, corporations, unions, etc., is both misplaced and ill-conceived, and here is my reasoning.
Businesses, corporations, unions, etc., are nothing more than legal fabrications of governing authorities having jurisdiction are they not? They have no defined lifespan as individuals do, outside of financial failure although this doesn’t seem to be an issue anymore. They are not held to the same legal standards of performance as individuals are; I haven’t heard of a government sanctioned corporate death penalty for example. They are not even allowed to vote in elections as an individual does, although this issue is being more than compensated for by lobbying efforts and the Citizens United ruling, in my opinion; both of which are realistically unavailable to the average individual. With a little research I’m sure I could find more dissimilarity between ‘legally constructed entities’ and actual individuals.
While I’m not opposed to lobbying per se, I am opposed to the money and other compensatory items distributed through these lobbying efforts. I believe this private largess amounts to legalized bribery at best, and legalized extortion at worst. Campaign finance reform is a good start, public ‘only’ election financing is even better. It’s, “one man (or woman), one vote”, beyond this I wonder if the public’s free (political) speech rights are being protected or even equally addressed. The constitution protects the individual citizen, I believe, from religious domination as well as government domination. Shouldn’t the constitution protect individuals from other forms of corporate domination as well?
What are your thoughts on this reasoning?

lostonlaw

Please forgive the naiveté of my comments as I am not part of the legal profession and my only experience with ‘law’ is trying not to run afoul of ‘it’. And while I appreciate and agree with the ACLU’s proclaimed charge of protecting an individual’s civil rights and defending equal protection under the law, I personally believe any effort to oppose legislation removing or severely limiting these rights for businesses, corporations, unions, etc., is both misplaced and ill-conceived, and here is my reasoning.
Businesses, corporations, unions, etc., are nothing more than legal fabrications of governing authorities having jurisdiction are they not? They have no defined lifespan as individuals do, outside of financial failure although this doesn’t seem to be an issue anymore. They are not held to the same legal standards of performance as individuals are; I haven’t heard of a government sanctioned corporate death penalty for example. They are not even allowed to vote in elections as an individual does, although this issue is being more than compensated for by lobbying efforts and the Citizens United ruling, in my opinion; both of which are realistically unavailable to the average individual. With a little research I’m sure I could find more dissimilarity between ‘legally constructed entities’ and actual individuals.
While I’m not opposed to lobbying per se, I am opposed to the money and other compensatory items distributed through these lobbying efforts. I believe this private largess amounts to legalized bribery at best, and legalized extortion at worst. Campaign finance reform is a good start, public ‘only’ election financing is even better. It’s, “one man (or woman), one vote”, beyond this I wonder if the public’s free (political) speech rights are being protected or even equally addressed. The constitution protects the individual citizen, I believe, from religious domination as well as government domination. Shouldn’t the constitution protect individuals from other forms of corporate domination as well?
What are your thoughts on this reasoning?

Anonymous

Please forgive the naiveté of my comments as I am not part of the legal profession and my only experience with ‘law’ is trying not to run afoul of ‘it’. And while I appreciate and agree with the ACLU’s proclaimed charge of protecting an individual’s civil rights and defending equal protection under the law, I personally believe any effort to oppose legislation removing or severely limiting these rights for businesses, corporations, unions, etc., is both misplaced and ill-conceived, and here is my reasoning.
Businesses, corporations, unions, etc., are nothing more than legal fabrications of governing authorities having jurisdiction are they not? They have no defined lifespan as individuals do, outside of financial failure although this doesn’t seem to be an issue anymore. They are not held to the same legal standards of performance as individuals are; I haven’t heard of a government sanctioned corporate death penalty for example. They are not even allowed to vote in elections as an individual does, although this issue is being more than compensated for by lobbying efforts and the Citizens United ruling, in my opinion; both of which are realistically unavailable to the average individual. With a little research I’m sure I could find more dissimilarity between ‘legally constructed entities’ and actual individuals.
While I’m not opposed to lobbying per se, I am opposed to the money and other compensatory items distributed through these lobbying efforts. I believe this private largess amounts to legalized bribery at best, and legalized extortion at worst. Campaign finance reform is a good start, public ‘only’ election financing is even better. It’s, “one man (or woman), one vote”, beyond this I wonder if the public’s free (political) speech rights are being protected or even equally addressed. The constitution protects the individual citizen, I believe, from religious domination as well as government domination. Shouldn’t the constitution protect individuals from other forms of corporate domination as well?
What are your thoughts on this reasoning?

Anonymous

Of course, receiving 20 million bucks from the Koch brothers had no influence on this backing of a SCOTUS decision that undermines democracy. No where does the proposed amendment say it can 'control content' as the author suggests. And in the CU decision we are not debating an individual's free speech rights, the issue is one of corporate 'free speech' and basically equates dollars with speech allowing corporations to buy political offices. Shame on you, ACLU.

Anonymous

Surely this is just one big slippery slope argument? "If you change it for this, there's nothing to stop you changing it for these other terrible things." Where have we heard that sort of thing before?

aps

Why not limit freedom of speech to human beings? Doesn't this problem stem from a history of endowing non-humans with human rights?

Anonymous

If we are going to play the corporations are people card, shouldn't they also be forced to pay income taxes people do? shoulden't they be forced to vote?
This an extremly dangerous precendent the supreme court has established.

disclosureisall

Disclosure is all. As long as all of the individual and corporate contributors identify themselves (fully, with no intermediate "donors"), we should welcome every contribution to the public square discussion. ACLU's stance on Citizens United, I am told, violates this principle. Is that true?

Anonymous

This is really upsetting! ACLU should not be taking up the cause to fight for the right. This is not a "free speech" issue, this is a corporate power issue; this is an abuse of our democracy and perpetuating and building inequality issue. This is a fundamental human, civil and environmental rights issue. I'm sorry, but if ACLU can't understand that, I cannot continue my membership.

trulysadaboutthis

Why are you advocating for the right of certain people to have a much louder voice than my own? I do not have the funds as do the Koch Brothers and other uber-wealthy folks to make my wants/needs/opinions known. Why do you advocate for such inequality? I have contributed monthly to the ACLU for many years. I understood why you advocate for the free speech of hate groups and flag burning etc. But I really don't understand your advocating in favor of the Citizens United decision. It has ruined our electoral system. Did you think that all this money would improve it?

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