Amending the Constitution to Undo Citizens United

Hillary Clinton has promised voters that, if elected, she will pursue a constitutional amendment to undo Citizens United v. FEC within her first 30 days in office.  Citizens United, a controversial decision criticized by President Obama and opposed by both Republicans and Democrats, held that banning corporate expenditures on political speech endorsing candidates during an election is a First Amendment violation.  Because I believe that the statute evaluated in Citizens United was unconstitutional, an amendment to the Constitution is the proper procedure for allowing greater restrictions on campaign expenditures.  The content of this amendment is key to ensuring that it will be ratified, that it will be effective, and that it will not unduly censor political speech or disrupt our free speech paradigm.

 

I have long maintained that, although a difficult decision, Citizens United was correct as a matter of First Amendment law.  The First Amendment prohibits bans on speech, regardless of the identity of the speaker, and the government cannot purposely diminish the speech of some to amplify the speech of others.  Many have called for Citizens United to be overturned, but a judicial renunciation of Citizens United so soon after its issuance purely based on a changed composition of the Supreme Court would create bad law and bad judicial policy.  The fact that 80% of Republicans and Democrats alike oppose Citizens United is not a reason that it should be overturned.  Although constitutional law reflects a complex, dynamic, evolving relationship between the courts and the people, constitutional protections exist in order to safeguard fundamental rights against majority, democratic opposition, even when these rights conflict with important social welfare goals.

Thus, a constitutional amendment, instead of a judicial undermining of free speech protections, would be the legally appropriate way to deal with campaign finance reform.  I remain agnostic on whether we should amend our constitution to accommodate greater restrictions on election spending.  There are reasonable arguments that Citizens United actually changed very little (and, indeed, channeled funding to groups that must disclose their financial sources instead of groups that don’t have that obligation).  There is a conflicting interpretation that Citizens United unleashed into elections an unprecedented torrent of money, which likely has a corrupting influence.  Regardless of campaign finance reform, lobbyists and leaders for all sorts of well-funded causes – progressive, libertarian, and conservative – engage politicians using tactics and platforms based on influence and power.  However, given that our country has become increasingly disenchanted with what it sees as “money in politics” (one reason I believe Donald Trump became a viable candidate), a sensible, sophisticated constitutional amendment would reduce cynicism about politics and perhaps make elections fairer.

The content of that amendment is critical to both ensuring that it passes (obviating the need for judicial undoing of Citizens United) and that it addresses the actual problems citizens wish to resolve.  The amendment needs to be flexible enough to account for unforeseen circumstances, as the amendment will endure as part of our Constitution, while being precise enough to allow for certainty and consistency in its application.  The drafters should be particularly careful not to frame the amendment too broadly, because, unlike most amendments to the Constitution, this amendment will diminish constitutional liberties (of the free speech variety) instead of enlarging liberties.

To determine which parts of Citizens United should be invalidated by amendment, the drafters should revisit the critical aspects of the decision.  Specifically, the majority and the dissent disagreed at several points in the analysis.  The majority invalidated the Bipartisan Campaign Reform Act, which attached criminal sanctions to corporations using money from their general treasury funds on electioneering communications.  The Court, via Justice Kennedy, reasoned that (1) speech is protected regardless of speaker, and the First Amendment has long applied to speech by corporations, (2) bans on money spent on speech trigger First Amendment protections, (3) Austin’s antidistortion rationale, which was a departure from precedent, is invalid, meaning that the government cannot base restrictions on political speech on “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas,” and (4) protecting the political process was not a compelling reason to override these free speech liberties, and the BCRA is not narrowly tailored, given that Congress can constitutionally ban direct expenditures in order to fight quid pro quo corruption and given that PACs created by corporations may exist even under BRCA as independent entities from the corporation.  The majority also noted that the dissent’s reasoning and the antidistortion rationale would apply equally to censorship of a New York Times editorial as it did to the speech at issue, a documentary about Hillary Clinton produced by a non-profit corporation.

In contrast, Justice Stevens in dissent reasoned that (1) corporations as speakers deserve fewer First Amendment protections, (2) BRCA is not an outright ban on speech, because PACs may still exist separate from the general corporate treasury, and (3) the corrupting influence of the massive amounts of money that corporations can collect and spend on political advertisements, even if in the form of expenditures instead of direct  contributions, is a compelling reason to restrict the speech at issue.

An amendment to Citizens United should focus on the problem of undue influence of a small number of individuals, pooling their resources using the corporate form, on our political process.  The amendment should not override the idea that generally all speech is protected, regardless of the identity or position of the speaker.  The amendment should not alter the current calculus that the government cannot generally intervene in the marketplace of ideas, even if some have a greater platform for speech than others, because ultimately the government has the largest monopoly on power and influence.  Any amendment should be limited to situations where corporate concentration of wealth may significantly undermine the fairness of elections or the integrity of politicians.

As an example, below is a possible proposed amendment.  This is just a very rough start.  I have limited this amendment to the corporate expenditure issues presented in Citizens United; Congress may already, subject to some limitations, constitutionally cap direct contributions to candidates.  I also wrote the amendment in such a way that any sort of PAC can be regulated, so this amendment applies to problems not covered by the Bipartisan Campaign Reform Act, which allowed a corporation’s PAC to exist, so long as it was separate from the corporate form.  Drafting this amendment has proved quite difficult, further solidifying my view that Citizens United was correctly decided.  I would love to hear your thoughts.  We should all have a voice here.  The constitutional amendment process is, after all, about allowing the democracy to reassert itself into a countermajoritarian document, allowing for evolution of how we view our enduring liberties and social compact.

 

  • Because of a significant interest in reducing political corruption or undue influence over politicians, Congress or the States may restrict spending, by corporations, unions, or any organizational entity with an operating budget resembling a corporation or union [note: I’m not sure how I feel about that suggested provision], on independent expenditures for communications endorsing a particular political candidate if the restriction, in both its purpose and its effect, contributes to reducing corruption or undue influence on elections. This amendment does not apply to the media speaking directly about a candidate, but only to unions or non-media corporations who use organizational money to endorse a particular candidate.  Congress, or the States, must produce findings demonstrating that all aspects of any particular campaign finance restriction, including its operative length of time and its monetary cap, are likely to reduce political corruption or undue influence upon a particular election and are not more restrictive than necessary to achieve that purpose.

 

 

 

 

 

6 thoughts on “Amending the Constitution to Undo Citizens United”

  1. In arguing that Citizens United was correctly decided, you assume that individuals and corporations are similarly situated and therefore entitled to the same breadth of 1stA protections. But your proposed amendment seems to concede that a meaningful distinction between speakers can be drawn on nothing more than the basis of their form. The two seem at odds with each other, do they not?

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    1. Thanks for asking, Stephan. The reason we would need a constitutional amendment is because distinguishing between speakers in the way the Bipartisan Reform Act does is unconstitutional under free speech jurisprudence. So, yes, I think this amendment would be at odds with our notions of generally protecting speech from government censorship without regard to the speaker; the amendment would establish a limited carve out for the purpose of campaign finance reform.

      I’m not even sure about whether I think this amendment is a good idea. Giving the government the ability to define the media would be a huge allocation of power. So, I remain agnostic about whether we should have an amendment, but if we do, this was my first attempt at a proposal. That said, I definitely do not think we should undo the rationale behind Citizens United- that generally we look at the speech, not the speaker, to determine if a violation has occurred.

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  2. I think your proposed ammendment has a great many problems.

    1) It leaves a giant gaping hole with the undefined word media. A media company, in the most straightforward sense, is a company whose primary enterprise is to distribute information. Such companies clearly need not be for-profit and even when they are even stereotypical instances of media companies (salon, fox etc..) often put ideological concerns before profit (as is only right and proper for them to be able to do).

    It is hard for me to see how an independent expenditure organization is NOT a media company. Like many newspapers it may spend more getting it’s message out that in takes in in revenue but so what. It wouldn’t be hard to relabel donors “media subscribers” and nothing prevents other corporations from spinning off media arms.

    2) The specific mention of media companies undermines an important facet of 1st amendment jurisprudence. There is no special legal status of being an institutional journalism/media company. This rule has been critical in allowing new kinds of information providers to spring up and provide us critical information about matters of public concern especially when they were young and no judge would have thought of the internet upstarts as traditional media companies.

    Worse, it virtually begs for political manipulation. The nyt is a media organization. Your church newsletter (megachurches can be huge) isn’t nor is the monthly magazine from your gun rights advocacy organization. Somewhere someone will draw the line between these information sources in a political fashion.

    3) The limitations seem practically useless. Likely to reduce corruption or undue influence will be satisfied by *every* restriction on campaign money. All donations are more likely to come from the rich and all money comes with it’s share of undue influence. As voter ID laws show us unless the legislature actively winks or passes totally insane laws the court has to accept congress’s apparent intent as genuine.

    On the other hand if interpreted to a high standard of proof so that actual evidence of particular corrupt acts or quid pro quo must be documented then that’s pretty much where we are now and I take the amendment to stand for the presumption that large scale corporate donations are, themselves, evidence of undue influence.

    The particular election thing just seems weird. The political process and free speech would benefit from a stable body of laws acceptable to both sides of the aisle that persist for multiple election cycles. Or did you mean they must be specific to the elections to a specific post.

    The least restrictive means is nice but ultimately what will have to be done is balance interests. Completely banning all private donations by said entities might be the least restrictive means to eliminate their undue influence but that last drop probably isn’t worth the costs to freedom of speech and the political process.

    4) I’m most concerned about the inclusion of “operating budget resembling that of a corporation or union”. The reason we are troubled by these donations isn’t the way they do their accounting but the source of and centralization of control over the money. Perhaps you mean of a similar size to a corporation or union?

    Either way this creates a giant hazard of sweeping in what are effectively political parties that don’t follow the standard model (i.e. can be excluded in this way). We don’t want to keep out the technolibertarians who decide to pool their political donations using a cryptocurrency based computational contract. We also don’t want to stop the blogger who puts together a huge following and asks readers to use a tip jar or runs ads on her site.

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  3. Let me sketch an alternative approach.

    The reason we don’t want corporations and unions donating is that it seems unfair for CEOs and union bosses to control such huge amounts of money that isn’t really theirs and be able to use it to influence elections in favor of their institutional interests rather than any person’s interest.

    I suggest that a better focus for corporations would be creating special rights that allow shareholders of publicly traded companies to opt out, and requiring special (abstention=no) votes of the shareholders to allow companies to engage in independent expenditures that are not part of the normal course of their business operations. Maybe you could even find a currently constitutional rule there.

    I don’t think anyone really has much of an issue if a family firm donates to PACs directly or their owners do (given similar tax treatment) so let’s focus on corporate government.

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    1. I agree with a lot of what you say here, and that’s why I’m not sure how I feel about an amendment. I just think it would be preferable to undoing Citizens United via judicial fiat, and i really dislike the proposals to use Citizens United as a litmus test for appointing SCOTUS Justices (that would set a really bad precedent). If a sensible corporate law solution remedies campaign finance concerns, that would certainly be preferable.

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