A Realistic Strategy for Overturning Citizens United

Passing a constitutional amendment is hard—but far from impossible.

Most Americans share similar views about how to get big money out of politics. Polling released in 2018 showed that 66 percent of Republicans, 70 percent of independents, and 85 percent of Democrats support a constitutional amendment. But since we haven’t amended the Constitution since 1992, the idea sounds like an impossibility to many. Of course, passing an amendment is inherently difficult—requiring support from two thirds of Congress and three quarters of states. Yet we are already closer to the goal than most people know.

In fact, an amendment has more momentum in Congress than many other widely discussed policy proposals. With a focused bipartisan campaign, activists could push one across the finish line within a few years.

Consider where things stand today. 47 sitting Senators have already expressed support for an amendment, compared to just 15 who have signed on to Medicare For All. More than 200 House members back it too, compared to only 21 who have signed on to the Free College For All Act. Additionally, 20 states have already expressed their support for an amendment through legislation or a ballot initiative, including “red states” like Montana and West Virginia. All told, that’s more than half that is needed. Plus, when those two states agree with California and Oregon, you know this is an issue than can transcend partisanship.

But ten years after the Supreme Court’s Citizens United v. FEC decision, which allowed corporations and unions to spend unlimited amounts of money to influence elections, we are still waiting. That’s primarily because the idea does not yet have the bipartisan support in Congress that it does among voters. And that’s due to the specific Republicans that have been in power since 2010. Both Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy are huge beneficiaries of big money and, not coincidentally, staunch opponents of campaign finance reform. Another reason is that some amendment proposals to overturn Citizens United have been divisive and partisan.

Many politicians and activists have conflated campaign finance reform with abolishing all corporate constitutional rights, which misunderstands the problem and draws valuable energy away from the real battle. Stripping Fifth Amendment protections away from corporations would allow the government to seize property without just compensation, but would not bring us closer to campaign finance reform.

Similarly, by framing the fight to get big money out of politics as a battle between Democrats and Republicans, instead of one between the people and the powerful, some organizations have made the issue unduly polarizing.

Fortunately, there are ways to improve our chances of making history. By focusing on the core issue of campaign finance reform rather than the red herring of corporate constitutional rights, there’s a path toward ensuring that Citizens United does not survive another ten years.

Though passing a constitutional amendment may sound like a drastic step, it is the most logical way to fix our broken campaign finance system. Big money got into politics because of Supreme Court decisions like Buckley v. Valeo and Citizens United, which struck down federally enacted campaign spending limits designed to reduce political corruption and ensure that ultra-wealthy individuals and artificial entities did not gain undue influence over elections. In both cases, a slim majority of justices failed to acknowledge that independent expenditures—outside spending from individuals and groups—jeopardize the integrity of our elections and government.

Now, the only way to overturn those grievous decisions is through a constitutional amendment. It would be folly to expect subsequent decisions to reverse course. At the same time, the problems caused by big money in politics are important enough that we cannot afford to wait for the court to change its mind. And the reforms we can use within the current system are simply not enough. Neither more disclosure requirements nor publicly financed elections can stop billionaires from spending unlimited amounts of money.

Plus, there is always the risk that without an amendment, the Supreme Court could strike down some public financing systems as unconstitutional. An amendment that gives Congress, state legislatures, and voters the power to enact limits on campaign spending is the best response to the Court’s dangerous precedents.

The good news: This is achievable. Campaign finance reform has widespread bipartisan support among voters—74 percent of voters in “very red” districts are in favor of an amendment, along with 76 percent in “very blue” districts.

Campaign finance reform has historically been a bipartisan issue. In 1990, William Rehnquist and Thurgood Marshall agreed that restrictions on political expenditures by corporations were both constitutional and desirable in Austin v. Michigan Chamber of Commerce. As recently as 2002, the Bipartisan Campaign Finance Reform Act (also known as McCain-Feingold) passed with support from 51 congressional Republicans. Today’s GOP may have even more reason to support reform than their predecessors because many have been targeted by outside spending. In the 2018 election cycle for instance, liberal undisclosed “dark money” groups outspent conservative ones $81 million to $43 million.

But that reality is lost on many voters. Citizens United has become too polarized. John Katko of New York is the only Republican member of Congress signed onto any campaign finance reform amendment proposal. Much of that is due to Mitch McConnell’s leadership within his party. But that doesn’t mean we shouldn’t also look at holes in the advocacy for an amendment.

Some groups and politicians, such as Representative Pramila Jayapal, have combined the effort for a campaign finance reform amendment with a separate goal of abolishing all corporate constitutional rights. But it is a mistake to conclude that corporate constitutional rights—or the concept of corporate personhood—were the basis for Citizens United, or that abolishing such rights would solve the problem. The problem is that the Court has given both corporations and individuals a right neither should have—the right to spend unlimited amounts of money to influence elections. The sensible solution, which dissenting justices have expressed, is to allow legislatures to enact limits on outside spending by individuals or artificial entities, because such spending poses a “mortal danger” to the political process.

Furthermore, as law professor Garrett Epps has written, “[T]he Court in Citizens United expressly said that it was not relying on the idea of personhood as the basis for its decision striking down the McCain–Feingold Act’s limits on money in electioneering. The Court relied on the nature of the speech itself, not the identity of the speaker…Thus if by a heroic effort we enacted a constitutional amendment stating that corporations are not people, a future conservative Court would have no trouble striking down limits on corporate political expenditures anyway.”

Nonetheless, Representative Pramila Jayapal has introduced an amendment proposal aimed at overturning Citizens United that would also abolish all the constitutional rights of corporations and unions.

That comes with two flaws.

First, such a provision could lead to unintended consequences, such as preventing nonprofits like Planned Parenthood from filing lawsuits, or allowing the government to conduct searches and seizures of businesses without a warrant. Even many liberal law professors like Epps and Kent Greenfield oppose the abolition of all corporate constitutional rights. Second, by pairing the far less popular idea of abolishing the rights of unions and corporations with the goal of campaign finance reform, Jayapal’s proposal deters potential allies who share the second goal, but not the first. Other proposals that are focused exclusively on campaign finance reform, like H.J. Res 2 or the Restore Democracy Amendment (which I wrote), offer a better chance of success.

Of course, passing a constitutional amendment is going to require bipartisan support. That means progressives need to adjust their approach accordingly. Too many organizations have pursued an incomplete strategy of trying to pass an amendment solely by electing Democrats. For example, one PAC founded by former Democratic Congressional Campaign Committee fundraisers called End Citizens United has raised more than $50 million by targeting left-leaning donors. But rather than attempting to build bipartisan support for an amendment, End Citizens United’s primary focus is on unseating Republicans. Similarly, groups like Public Citizen have done stellar work getting more than 200 Democrats to cosponsor H.J.Res 2, but that ratio has to change dramatically for an amendment to succeed. Simply put, we must make the same effort to work with Republicans who may support campaign finance reform that we do to unseat those who don’t.

That doesn’t mean we should expect an amendment to pass through this House or Senate. It won’t. We need to understand that this is a long-term project. But no matter how long it takes, bipartisan support is essential. The push for a campaign finance reform amendment among Congressional Republicans can follow a similar trajectory to the fight for same-sex marriage, by steadily gaining support over time. In 2009, only 21 percent of Republicans supported same-sex marriage, but in less than a decade, that more than doubled to 47 percent.

Passing an amendment to undo the damage caused by 40 years of bad Supreme Court decisions is one of the most important things we can do to improve government. If we can’t solve our underlying problems like big money in politics, we will never be able to tackle income inequality, prescription drug prices, or any other major problem that is exacerbated by our campaign finance system. In short, solving this problem is a prerequisite to solving our other problems.

Fortunately, we are closer to achieving the historic goal of passing a constitutional amendment to get big money out of politics than most people know. But to cross the finish line, the focus should be on campaign finance reform rather than corporate personhood. We must work with Republicans and Democrats, and make the issue one of our top priorities. If we can do that, we can put Citizens United where it belongs—in the dustbin of history alongside Dred Scott v. Sanford and Bowers v. Hardwick.

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David Edward Burke

David Edward Burke is the founder of Citizens Take Action, a nonprofit organization that advocates for political reform.