The Wrong Way To Fix Citizens United
At the second anniversary of the Citizens United decision, there can no longer be any doubt—the political world has been changed in profound ways, and for the worse. If there’s a general sense in this election cycle that anything goes—at least in terms of political money and advertising—it’s in part because that Supreme Court decision, which struck down limitson independent political spending by corporations. Lax enforcement of other campaign laws, and the Court’s hint that it might go even further, have also contributed to what is sure to be an ugly, big money election.
Is there any way to correct for the damage Citizens United has wrought? There’s little chance that the Supreme Court will reverse course, not before at least one of the five Justices in the Citizens United majority is replaced. Faced with that reality, a handful of organizations have begun to push for an amendment to the Constitution to reverse Citizens United. On Tuesday, the country’s best-known campaign finance reform group, Common Cause, joined the amendment movement, proposing to place initiatives on the ballot in several states calling on Congress to pass such a constitutional amendment. Unfortunately, this is not only a futile project, but an idea that poses a danger to the cause.
The long-standing movement for campaign finance reform has often been weakened by its tendency to pull in several different directions. A decade ago, reformers were squabbling over whether to focus on limiting contributions to $100, banning soft money at the federal level, or enacting full public financing in the states. In recent years, however, a welcome consensus has emerged in favor proposals for public financing, drawing on successful programs in Arizona, Maine, New York City and Connecticut. A majority of Democrats and a few Republicans co-sponsored the Fair Elections Now Act, based on those successes, in the last Congress. The constitutional amendment movement will be yet another distraction from these efforts.
The main problem isn’t that the effort to pursue a constitutional amendment would be futile—though it certainly would be. Advocates know that, and point out correctly that futility has never, in itself, been an argument against pursuing a constitutional amendment. After all, most efforts to amend the Constitution fail, but the efforts to pass them can have residual benefits, by giving supporters a long-term vision along with incremental steps that can be achieved through legislation or cultural change. The Equal Rights Amendment is the classic example of an amendment that fell short, but gave its advocates an organizing principle and clear goal that allowed them to achieve incremental wins along the way. The legal framework for gender equality is arguably as strong now as it would be if the ERA had been ratified.
A proposal to amend the Constitution to establish a right to vote would have a similar movement-building value. Most people assume the right to vote is in the Constitution, and understanding that it isn’t can lead to a healthy discussion about why we restrict voting in so many ways. A movement for a right-to-vote amendment would give focus to efforts to overturn voter identification laws and allow same-day voter registration.
A movement to overturn Citizens United by amendment, however, would take a different form, because it would be retracting rights rather than expanding them, and thus would have few residual benefits. State, local, and federal laws limiting corporate political spending would still be considered unconstitutional until the day the amendment, after passing both houses of Congress with supermajorities, was ratified by the legislatures of 38 states. By reinforcing the misconception that nothing can be done about the current condition of money in politics until the Constitution is amended, the amendment movement would undermine progress on other solutions, including public financing, improvements in corporate governance to give shareholders more say in political contributions, disclosure improvements, and better enforcement of existing laws by both the Federal Election Commission and the Internal Revenue Service. If it were possible to pass an amendment through Congress and get it ratified by 38 states, it would also be possible to enact full public financing—the optimal solution—at both the federal and state level.