Constitution Check: Will the Citizens United decision be overturned?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks the Democrats’ election pledge to overturn the Citizens United campaign finance decision – a vow that faces considerable odds.
Bernie Sanders speaks about Citizens United
THE STATEMENTS AT ISSUE:
“Today I’m announcing that in my first 30 days as president I will propose a Constitutional Amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy. I will also appoint Supreme Court justices who understand that this decision was a disaster for our democracy…. I hope some of the brilliant minds in this room will seek out cases to challenge Citizens United in the courts, because I know I can’t do this alone. ”
– Excerpt from a videotaped speech that Democratic presidential candidate Hillary Clinton made on July 18 to a St. Louis convention of a liberal advocacy group, Netroots Nation.
“Hillary Clinton will nominate justices to the Supreme Court who are prepared to overturn Citizens United and end the movement toward oligarchy in this country.”
– Excerpt from a speech by Vermont Senator Bernie Sanders at the Democratic National Convention Monday night in Philadelphia.
“We will fight to end the broken campaign finance system, overturn the disastrous Citizens United decision, restore the full power of the Voting Rights Act, and return control of our elections to the American people.”
– Excerpt from the 2016 platform adopted by the Democratic National Convention in Philadelphia.
WE CHECKED THE CONSTITUTION, AND…
Some tasks that the American government might perform are, by the design of the founding generation, very hard to bring about. The hardest is to change the Constitution itself. To do that requires a massive mobilization of the political sentiment of nearly the entire nation. And it is a task that the founders did not trust to leave entirely to the new national government; they insisted that the choice to amend must be kept as close as possible to the people themselves.
Those who met in Philadelphia in 1787 had no illusions that the final document they had written was perfect in every way. In fact, they quickly learned, during the state conventions to ratify the Constitution, that a promise of early amendments – to create a bill of rights – would actually be politically necessary in order to get enough states to accept the Constitution.
Article V, spelling out how to amend, was designed – or so James Madison wrote – to “guard equally against that extreme facility which would render the Constitution too mutable and that extreme difficulty which might perpetuate its discovered faults.”
Beyond the Bill of Rights, added in 1791 as the first ten amendments, the words of the Constitution actually have been changed only 17 additional times. The latest came 24 years ago, with the Twenty-seventh Amendment dealing with congressional salaries.
However, it is a historical reality and has been since 1803 (although this is still as hotly debated as it was more than two centuries ago), that the Constitution also gets its meaning from the way the Supreme Court interprets it. Actually, the complex machinery of Article V has been used seven times to amend the Constitution by overruling Supreme Court decisions. Remember the Nineteenth Amendment, giving women the right to vote?
By far the easiest way to change the Constitution, at least in terms of numbers, is to persuade the Supreme Court to change its mind on a given point of constitutional interpretation. The fact is that, through the course of American history, the Supreme Court has overruled itself at least 112 times on a constitutional point, by one reliable estimate. When was the last time that happened? Just last year, when the court ruled that the Fourteenth Amendment provided an equal right for same-sex couples to marry, overruling a 1972 decision that said this was left to the states.
Throughout the current presidential campaign, especially among Democrats, there has been much talk of overruling the court’s 2010 decision in Citizens United v. Federal Election Commission. That has been a prominent theme of the party’s convention in Philadelphia this week.
In that ruling, the court voted 5-to-4 in declaring that the First Amendment protects the right of corporations and labor unions to spend unlimited amounts of their money to try to influence election outcomes. Many political analysts believe that this ruling brought about the rise of “super PACs,” with a dominant financial influence in national elections. (It is an irony of history that the Citizens United case arose because of the money spent to create a highly critical campaign movie against Hillary Clinton, who now is one of the strongest critics of the Citizens United decision.)
Hillary Clinton is now proposing two different ways to overturn that ruling. Often during speeches last year, she spoke about selecting Supreme Court Justices who, she hoped, could be counted on to overrule that decision. She has continued to press that approach. That has always seemed like quite a long shot. Even the death in February of one of the Justices in the majority, in that case, Antonin Scalia, may not have changed the judicial calculus – unless a newly elected Democrat chooses a replacement for Scalia who would help make a majority to overrule that decision. Candidate Clinton recently added a strong encouragement of lawyers to keep trying to file lawsuits to test whether the court might be persuaded on this point.
Lately, though, she has added a proposal to amend the Constitution to get that job done. Although the Constitution assigns no formal role, of any kind, to the president in the Article V amendment process, a strong campaign by a president to promote such an amendment might give the idea added impetus – especially if Congress’s leadership is taken over by the Democrats in November.
The amendment process, too, may be a long shot. Even assuming that the House and Senate would each approve such an amendment by at least a two-thirds vote, are there at least 38 states that would ratify it after that decision were handed on to the states?
This project, of course, is a strong rallying point for Democrats in politics. But, in constitutional terms, it may not be much more than that.
