Corporate Accountability

Is a Constitutional Amendment the Answer to Citizens United?

By Nicole Flatow

Opponents of the landmark Supreme Court ruling in Citizens United v. FEC gathered at courthouses around the country today to protest the decision around its two-year anniversary, many petitioning for a constitutional amendment to overturn the ruling.

The Constitutional Accountability Center released an Issue Brief bolstering the case for a constitutional amendment. To “those who think an amendment overturning Citizens United is a pipedream,” the Issue Brief and an accompanying blog post by Constitutional Accountability Center President Doug Kendall offer the story of Pollock v. Farmers’ Loan & Trust Co. and its invalidation through the ratification of the Sixteenth Amendment.

“Throughout our history, the American people have amended the Constitution in order to undo Court rulings that misinterpreted the Constitution,” Kendall writes. “In addition to the Sixteenth Amendment, the Eleventh, Fourteenth, and Twenty-Sixth amendments were all sparked, at least in part, by divided Supreme Court rulings. In these Amendments, the American people agreed that the dissenting opinions, not the majority, better articulated the meaning of the Constitution.”

But not everyone agrees that a constitutional amendment is the best solution to curb the infiltration of money into politics.

Roosevelt Institute Senior Fellow Mark Schmitt writes for The New Republic that, unlike other movements to amend, an amendment to overturn Citizens United would “retract rights rather than expand them.” Schmitt suggests that this movement instead focus its energies on rooting out corruption in election spending more generally. He writes:

We can’t know for sure, but most of the notable Super PAC funding in the 2012 primaries seems to have come from wealthy individuals, such as casino mogul Sheldon Adelson, on behalf of Newt Gingrich, or Jon Huntsman Sr., on behalf of the recently departed candidate Jon Huntsman Jr. And in the case of privately held corporations such as Koch Industries, it really doesn’t matter much whether the Koch brothers contribute from their personal fortunes or from the corporate treasury they control. Restricting only corporations, while it would undo the specific legal change wrought by Citizens United, would actually do little to change the wild west culture of money in today’s politics.

In an op-ed for The Washington Post, Boston College law professor Kent Greenfield also laments the movement’s push for a constitutional amendment, calling the portrayal of Citizens United as a decision that held corporations are people “simplistic and dangerous.”

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

The “key flaw” of American corporations, he continues, is instead that “they have become a vehicle for the voices and interests of an exceedingly small managerial and financial elite — the notorious 1 percent.” That corporations speak is less a concern than whom they speak for and what they say. The cure for this is more democracy within businesses — more participation in corporate governance by workers, communities, shareholders and consumers. If corporations were themselves more democratic, their participation in the nation’s political debate would be of little concern and might even be beneficial.

To mark Citizens United’s two-year anniversary, the American Constitution Society and the Center for American Progress are hosting a discussion Monday about the case’s legacy, its impact, and corporate money’s potential influence on the 2012 election. Panelists will include Jeff Clements, who is a leader in the movement to pass a constitutional amendment, Monica Youn, an expert on campaign finance reform law, and Melanie Sloan, who heads the government watchdog Citizens for Responsible Ethics in Washington.

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