“Fixing” Citizens United Will Break the Constitution

Originally posted on The Huffington Post.

In “Fixing Citizens United,” Professor Geoffrey Stone—usually a friend to the First Amendment—argues for a constitutional amendment to “fix” the Citizens United Supreme Court decision. Professor Stone mentions the proposal rather offhandedly, but the idea is a nuclear option. A constitutional amendment—specifically an amendment limiting the right to political speech—would fundamentally “break” the Constitution and endanger civil rights and civil liberties for generations.

First, it’s important to be clear on what Citizens United did. The case allowed corporations and unions (including non-profit corporations like the ACLU or National Rifle Association) to spend “general treasury” (non-political action committee) funds on political communications that are not coordinated with a campaign. Citizens United itself has very little to do with the dreaded “Super PACs,” which are primarily funded by individual donations. Individuals have been allowed to spend their own money on political speech since time immemorial (or at least since adoption of the First Amendment). Further, Citizens United has nothing to do with direct contributions to candidates, which are still totally verboten for corporations and unions and strictly limited for individuals.

With that background, here’s the proposed amendment.

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.

When Professor Stone says federal and state governments “shall have the power to regulate political expenditures,” he means to give them the ability to place limits on, and control the content of, political speech, even when it is non-partisan and independent of a campaign. This speech would include typical “vote for X” ads, but would also extend to political “issue” advertisements (“call Senator Reid and tell him to support bill Y”), documentaries by Michael Moore and other political filmmakers and probably even social media platforms like Twitter or Facebook. The problems with such an approach are many.

The Constitution’s radical stability is its greatest strength. The high bar for amending the Constitution—agreement by two-thirds of both the Senate and the House (or the states), and then three-fourths of state legislatures or constitutional conventions—exists precisely to deter ill-considered but temporarily popular amendments, which I would argue this is. People are wary to invest resources and time in promoting or championing constitutional amendments because the chances of failure are high. That’s why our Constitution works so well. It’s easy to interpret broadly, but textual change requires effort and sustained support.

Clearly cognizant of this particular concern, Professor Stone suggests that his amendment would not be unprecedented. On the contrary, while not the first amendment responsive to a Supreme Court case, this would be the first amendment in history to limit individual, constitutionally guaranteed rights. The four amendments he mentions as precedent all either clarified the scope of existing constitutional provisions or expanded individual rights. For the curious, I believe the amendments he is referring to are the 11th (states can’t be sued by people in federal court), 14th (expanding equal protection and due process rights in the wake of the Civil War), 16th (federal income tax not unconstitutional) and 26th (voting age no higher than 18).

Further, although success of an amendment limiting individual rights is thankfully unprecedented, proposed amendments certainly are not.

The ACLU has been on the (often lonely) frontline against ill-considered but temporarily popular constitutional amendments to limit civil liberties since its inception. For 20-plus years, we’ve been fighting amendments prompted by Supreme Court decisions in United States v. Eichman and Texas v. Johnson, which held unconstitutional state and federal laws banning flag desecration. We’ve repeatedly opposed the “Victims’ Rights Amendment,” which would unfairly limit certain due process rights, including the right to a fair trial. And (this is the best), Republicans today are calling for an amendment repealing the 14th Amendment’s guarantee of citizenship if you are born in the United States. Some grotesquely call it the “anchor baby” amendment.

Now imagine a world where Stone’s proposed Citizens United amendment serves as real precedent for using the amendment process to limit rights, and both houses of Congress are two-thirds Republican (the latter is not inconceivable even in the next Congress). Flag desecration, victims’ rights and birthright citizenship amendments would just be the beginning. Undoubtedly, you would see additional attempts to limit individual rights through the amendment process simply on the strength of the argument: well, we did it with political speech, why not with pornography, affirmative action, voting requirements, warrantless national security surveillance or any other similarly hot-button issue? You can bet a successful Citizens United amendment would be talking point number one for groups pushing an amendment to overturn Roe v. Wade.

Reasonable minds can and should differ on the influence of “big money” in politics. The legal and policy questions raised by the link between concentrated wealth and political speech are numerous and complicated. We should be discussing the health of our politics, and we should be doing more to, for instance, provide for public financing and promote transparency without quelling anonymous speech. But if there is one thing we absolutely should not be doing, it’s tinkering with our founding document to prevent groups like the ACLU (or even billionaires like Sheldon Adelson) from speaking freely about the central issues in our democracy. Doing so will fatally undermine the First Amendment, diminish the deterrent factor of a durable Constitution and give comfort to those who would use the amendment process to limit basic civil liberties and rights. It will literally “break” the Constitution.

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