Civil and Human Rights

Amending the Constitution to reverse ‘Citizens United’

Do we need a constitutional amendment to overturn Roberts’ court rulings that have eviscerated our nation’s campaign finance laws and opened the floodgates to unlimited corporate spending? That question was front and center last week as senators gathered for a historic hearing of the Senate Judiciary Committee in which both Majority Leader Harry Reid and Minority Leader Mitch McConnell testified. The answer may well be yes. And it is unquestionably the case that the Constitution is the American people’s charter, and they have the right to undo Supreme Court decisions that violate fundamental constitutional principles.


That did not stop Republican Senators Charles Grassley, Ted Cruz and others from contending that it would be a an affront to basic constitutional values to amend the Constitution to limit the Supreme Court’s interpretation of the First Amendment. Even some critics of Citizens United agree. For example, Dana Milbank, writing in the Washington Post, argued that pushing for an amendment was a mistake, and that progressives should instead try to influence future appointments to the Supreme Court in the hopes of securing a majority to overrule Citizens United. These arguments are badly misguided.


Milbank is, of course, right that progressives should work to change the composition of the Supreme Court, but there is no reason to pursue that avenue alone. Constitutional amendments designed to overrule wayward Supreme Court opinions and restore first principles are as old as the republic itself. The Eleventh Amendment, ratified in 1798 to protect states from certain suits in federal court, was a direct response to the Supreme Court’s first major constitutional ruling. Since then, the American people have repeatedly added amendments to correct decisions that strayed from the Constitution. The Fourteenth, Sixteenth, and Twenty-Sixth Amendments were all sparked by divided Supreme Court rulings. In all these instances, the American people came together to take back the Constitution, restore constitutional first principle, and overrule Supreme Court decisions that had perverted our nation’s foundational charter.


The bar for amending the Constitution is necessarily a high one, but it is met here. In the rulings like Citizens United and McCutcheon, the Roberts Court has turned our Constitution’s system of democracy of, by, and for the people on its head, ruling that money is speech, corporations are an essential part of “We the People,” and that the government’s anti-corruption interest only extends to outlawing bribery. These rulings, which threaten the fate of all limits on campaign giving and spending, have laid waste to the Constitution’s promise that our system of representative democracy was, in the words of James Madison, “not [for] the rich, more than the poor” and expanded opportunities for political corruption.


Further, as Sen. Patrick Leahy explained at the start of the hearing, rulings like Citizens United represent a frontal assault on the arc of our constitutional progress toward a more inclusive democracy open to all Americans. In more than 225 years, the American people have consistently amended the Constitution to protect the right to vote and make our system of government more democratic, affirming the right of citizens to vote free from race, gender, age discrimination, ending the use of poll taxes, and giving Americans the right to elect senators of their choosing. In Citizens United and other rulings, the Roberts Court is reversing this trend in favor of democracy and political equality, giving corporations the right to spend unlimited sums of money to buy political influence and drown out the voices of ordinary Americans. As North Carolina State Sen. Floyd McKissick explained in his testimony, that is exactly what has happened in North Carolina in the wake of Citizens United.


No one thinks we should tinker with the majestic wording of the First Amendment, and there is a healthy debate about the best way to write an amendment overturning Citizens United and other rulings. In fact, during the hearing, a number of Democratic senators seem inclined to modify the amendment introduced by Dem. Senator Tom Udall to bring it in line with the one proposed by Justice John Paul Stevens. But there should be no debate about what the Constitution provides and what our history shows. When the Supreme Court gives corporations the right to spend unlimited sums of money to buy political influence, the American people have the right to say that’s not what the Constitution means.

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