Fixing Citizens United
Geoffrey R. Stone
Any intelligent person following American politics these days should be deeply distressed by the ever-growing role of big money in our electoral process. The extraordinary concentration of wealth in the hands of relatively few Americans has completely distorted the nature of political discourse. As multi-millionaires, billionaires and powerful corporations are now free to spend unlimited amounts in order to dominate public debate, we have moved from a political system founded on the aspiration of one person/one vote to one increasingly founded on money/money/money.
Of course, there are those who say that money doesn't really matter. What matters, they say, is the quality of the candidates and the strength of their ideas. Unfortunately, in a world of high-stakes and high-cost media, this is nonsense. Speech matters. It shapes people's perceptions, knowledge and attitudes. Why else would businesses spend billions of dollars each year on commercial advertising? Corporations and billionaires are not stupid. They would not waste millions of dollars to fund an endless flood of political ads if those ads didn't pay off. They do. Money may not guarantee victory, but it definitely helps.
Imagine a presidential debate in which the candidates were invited to buy debate time. Instead of the debate time being allocated equally, each candidate would bid for minutes, so the candidate with the most money would buy the most minutes in the debate. What would we think of that? That is effectively what has happened to our political system. This is a disaster for our nation. It alienates voters, enables a coterie of highly-self-interested millionaires and corporations to distort our national political discourse, and causes elected officials desperately to curry favor with wealthy supporters, often at the expense of the public interest.
The current state of affairs is due largely to two decisions of the United States Supreme Court -- Buckley v. Valeo (1976) and Citizens United (2010) -- in which the Court held that government cannot constitutionally limit the amount of money that individuals (Buckley) or corporations (Citizens United) can spend in the "marketplace of ideas" to bring about the election of their favored political candidates. As a consequence of the doctrines set forth in those two decisions, the Court has invalidated a host of federal and state laws enacted by American citizens across the nation in the hope of stemming the tide of political dollars.
Ironically, by attempting in these decisions to protect the freedom of speech from undue government interference, the Court has inflicted grave damage on the very political system that the freedom of speech is designed to promote. Although the dire consequences of these decisions may not have been evident in 1976, and may not even have been fully evident in 2010, we can now see clearly what the Court has wrought.
The question is: What is to be done now? One response might be for Congress to try to contain the damage by enacting regulations of the political process that might not be foreclosed by the Court's decisions. But even if a divided and highly polarized Congress would enact such laws, such as a law requiring public disclosure of the names of those who fund political ads, and even if the Court were willing to uphold them, such reforms would have only a second-order effect on the problem. Justice Brandeis may have been right when he observed that "sunlight is the best disinfectant," but sometimes something stronger than a disinfectant is necessary.
A second response might be to hope that the Supreme Court itself overrules Buckley and Citizens United. After all, Citizens United overruled a relatively recent decision that had reached precisely the opposite result (after Justice Alito replaced Justice O'Connor on the Court). Because it seems unlikely in the extreme that any of the five conservative justices in the majority in Citizens United (Roberts, Scalia, Kennedy, Thomas and Alito) will change his mind on this issue, this scenario depends on a president who disagrees with Citizens United having the opportunity to nominate a justice with a similar view to replace one of the five conservatives.
There are obvious impediments to this scenario. First, a justice in the majority in Citizens United is unlikely to step down voluntarily during the term of office of a president who would be inclined to nominate a justice who disagrees with Citizens United. Second, even if a president had the opportunity to nominate such a justice, it would be extremely difficult, given the extreme polarization in the Senate and the rising obstructionism on judicial nominations, for such a nominee to get confirmed. Third, even if such a justice were nominated and confirmed, the Supreme Court is generally quite reluctant to overrule major recent decisions (Citizens United to the contrary notwithstanding). Thus, even if a majority of the justices at some point in the future were persuaded that Buckley and Citizens United were "bad" law, they still might not vote to overrule them.
A third response might be to amend the Constitution. Buckley and Citizens United interpreted the First Amendment as prohibiting government from limiting the amount individuals and corporations can spend in the political process. In theory, an amendment to the Constitution (more precisely, an amendment to the First Amendment) could overrule those decisions. This would not be unprecedented. On four prior occasions in American history we have amended the Constitution to overturn what came to be seen as a misguided judicial interpretation of the Constitution.
This is no small challenge, however. Efforts to amend the Constitution have almost invariably failed. The United States Constitution is one of the most difficult in the world to amend. Attempts to amend the Constitution to reverse Supreme Court decisions on such issues as racial segregation, busing, flag burning, school prayer and abortion have all ended up in the dust bin of history. A constitutional amendment requires the support of two-thirds of both the House of Representatives and the Senate and then ratification by three-fourths of the state legislatures. Even if a substantial majority of the people support a particular position, getting it enacted in a constitutional amendment is a monumental task, especially if there is significant opposition.
On the other hand, public opinion polls suggest that 80 percent of the American people oppose Citizens United, including 65 percent who "strongly" oppose it. If that holds true, and if citizens are prepared to make this a "make or break" issue for politicians of both political parties, then adoption of a constitutional amendment seems at least plausible.
But what should such a constitutional amendment say? Superficial slogans like "money is not speech" or "corporations are not people" will not suffice. Can the government forbid you from using money to buy books? Can it prohibit the New York Times (a corporation) from publishing? Slogans may be good rallying cries, but they do not make good law.
If I were to propose a constitutional amendment, here's what I would suggest:
"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."
What do you think?
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