Citizens United

Sanders and Clinton Both Want to Overturn Citizens United, but Neither Knows How

Sanders thinks a single appointee can get it done in short order, while Clinton relies on unconstitutional reasoning.

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CNN

Six years ago in Citizens United v. Federal Election Commission, the Supreme Court overturned legal restrictions on political speech by unions and corporations (including nonprofit advocacy groups). Bernie Sanders and Hillary Clinton are both committed to reversing Citizen United, but neither of them seems to understand how that would work.

Last week, as Scott Shackford noted on Saturday, Sanders declared on Twitter that "any Supreme Court candidate of mine will make overturning Citizens United one of their first decisions." It seems that the Vermont senator (or whoever was speaking on his behalf) thinks a single justice has the power to reverse any precedent he dislikes, even without waiting for an appropriate case to come along. 

Hillary Clinton has a firmer grasp of the legal mechanics involved in overturning a Supreme Court decision, saying, "I'll appoint Supreme Court justices who recognize that Citizens United is bad for America" and "if necessary, I'll fight for a constitutional amendment that overturns it." The former secretary of state thus implicitly concedes that Citizens United might survive even if she gets to appoint a justice or two. The oldest justice, Ruth Bader Ginsburg, was on the losing side in that decision, and there is no guarantee that Antonin Scalia or Anthony Kennedy, who are both a few years younger than Ginsburg, would retire while Clinton had the power to pick their successors. Although a constitutional amendment is an even longer shot, it is at least technically possible, unlike the Sanders plan.

Sanders nevertheless has a better understanding of the legal reasoning that would be required to renounce Citizens United. In his brief for "Getting Big Money Out of Politics and Restoring Democracy," he faults the Supreme Court for endorsing the "absurd notion" that "giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption." He argues that the super PACs made possible by Citizens United in effect "are enabling the wealthiest people and the largest corporations in this country to contribute unlimited amounts of money to campaigns." That language reflects the main rationale the Supreme Court has used to uphold limits on election-related spending: the prevention of actual or perceived corruption. 

Clinton, by contrast, complains that the spending allowed by Citizens United is "drowning out the voices of ordinary Americans and distorting our democracy." That suggests campaign finance regulations serve the constitutionally dubious goal of maintaining "balance" in political debates, making sure that everyone gets a fair hearing and no one talks too much. That rationale, unlike the goal of preventing corruption, has never been fully embraced by the Supreme Court (although a 1990 decision, overturned in Citizens United, nodded in that direction). In a 1996 law review article, future Justice Elena Kagan, who as solicitor general represented the government in Citizens United, deemed it well established that "the government may not restrict the speech of some to enhance the speech of others."

As I showed in my 2010 Reason cover story about the reaction to Citizens United, Clinton is not the only critic of the decision who seems to disagree with that principle. President Obama uses similar language, saying "powerful interests must not be allowed to drown out the voices of ordinary citizens." Obama and Clinton in effect want to appoint federal bureacrats as national debate moderators, a role that is pretty hard to reconcile with the command that "Congress shall make no law…abridging the freedom of speech."

NEXT: Just the Facts

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  1. Ahh Yes, We need a constitutional convention to make it illegal to say mean things about Hillary.

    1. We need some kind of doctrine. One that’s all about fairness.

      1. If we could get Agile Cyborg on NPR, I would be down for that.

        1. I’d never listen to anything else.

          1. I’m all for free speech, but. Butts only spew shit. That’s what they are designed to do.

  2. Damn those korporations for drowning out the shrill voice of the Hillary.

  3. Like the GOP with Obamacare, they don’t really want to overturn the whole thing – just tweak it a little. Specifically, the part where corporations and other right-wing extremist hate groups like the GOP are treated in the same manner as public interest groups like unions and the Democrats.

    1. But right-wing corporations only, not the noble New York Times, MSNBC, and other exemplars of true media, which are not corporations At.All.Never.In.A.Million.Years.

  4. But money is not enough! We need a constitutional amendment that guarantees Jeb! gets a fair shot.

    1. The lesser bush has a fair shot, just like everyone else does. His aim is off by a country mile, and no law can fix that. For which I am quite thankful.

  5. The goal is to restrict “corporations” but not unions. Especially public employee unions. They are people.

    1. Yep, that’s the endgame – and a terrible, destructive endgame it would be.

    2. Don’t forget corporations like the NYT, WaPo, ABC, CBS, CNN, etc are to exempt also.

  6. But not restrict corporations like the NY Times from making explicit endorsements, or corporations like Mirimax from releasing movies like Fahrenheit 9/11.

    1. No, just anti-Hillary movies and media companies that aren’t really news, like Fox and the Wall Street Journal.

      NYT is the voice of the people and Moore is just a regular guy. Not like those evil billionaires and kerperayshunz

    2. Corporations aren’t people! Except the NY Times who is the most decent and compassionate person I know.

    3. Or {insert Soros-funded propaganda org here}.

  7. The whole “balancing” thing with regard to corruption or the appearance of corruption is exactly the moment where the constitution gets shredded. There is no “but it has really important policy implications” exception to the rule of law.

    Whoever wrote “the constitution is not a suicide pact” was a mendacious cunt. The law should be the law, plain and simple. When we go around re-imagining the law (as in the case of the healthcare law) or doing end-runs around constitutional limitations (like Wickard-Raiche or with campaign finance laws) out of expedience, we destroy the foundation of the government’s legitimacy. We have moved from the rule of law to the rule of man.

    You no longer can rely on the letter of the law to determine if your behavior is legal or not. You have to wait around for some bureaucrat to decide if he wants to prosecute you this time. (As in Obama’s various exemptions from the healthcare law or drug laws, or education law, or, or, or…)

    If the constitution says in plain, simple language “congress shall make no law” it is impossible to argue that there is a huge, unwritten “except as regards political speech”. Particularly when pretty much the entire point of the protections for speech and the press were to protect political speech.

    It is really jarring to see this kind of squishy interpretation of the law juxtaposed with stories of inflexible and absurd rule enforcement in the schools. At least for those of us paying attention.

    1. If the constitution says in plain, simple language “congress shall make no law” it is impossible to argue that there is a huge, unwritten “except as regards political speech”. Particularly when pretty much the entire point of the protections for speech and the press were to protect political speech.

      But fires. Theaters. What’s wrong with you, do you want the Kaiser to win???

        1. Yeah, but that was back in nineteen dickety two

      1. The ideal way to solve the issues behind the first world war would have been for Woodrow Wilson, Kaiser Wilhelm the Snotty Twerp, Czar Nicholas the Incompetent, and the rest of the big shots who were ruling the countries involved in the war to all be put in a lifeboat and cast adrift in the Beaufort sea.

        -jcr

        1. With a newspaper for Hitchcock’s diet ad.

    2. Thank Justice Jackson, he who was part of the kangaroo court called Nuremberg.

  8. Golly, it sure seems like the statement Congress shall make NO LAW…abridging the freedom of speech is clear, unambiguous and would close any and all discussion on this matter.

    But alas, I am but a layman and not gifted with the ability to read the secret parts of the Constitution and Bill of Rights a law degree/government position enables you to see.

    1. they lay that one right alomgside “shall not be infringed” and do the same thing to both.

  9. They know how, they just don’t want to admit it. Overturning the Citizens United decision requires repealing the first amendment.

    -jcr

  10. Actually Bernie seems pretty confused too. CU didn’t involve giving money to politicians. It was about giving money to third parties so they could speak about politicians.

    1. Actually, it was about those third parties being able to speak after a certain date.
      Non-profit Citizens United wanted to air a movie about HiLIARy less than 60 days before an election.
      The FEC said the law prohibited them from doing that.

  11. The Congress may limit contributions of money because money isn’t speech, yet we need to limit contributions of money to balance out speech.

    1. And we need Congress to make determinations about what is and is not acceptable because otherwise corporations might inappropriately influence Congress’s decision-making.

      I see no way for that to go wrong…

      1. need glasses much?

        1. or is their smokescreen really that thick?

    2. The Congress may limit contributions of money

      I’m squinting but I don’t see this power in Article I, Section 8.

      1. read it again this time with some lawyer glasses on. Its there, it is it is it is it is…….

      2. Do you even penumbras and emanations, bro?

    3. We also need to limit contributions of speech and press because those are the same as cash contributions. Money is not speech but speech can be money.

  12. We all know that kkkorporate kochtopus spending has stolen our democracy and turned into a plutocracy.

    Except, you know, all the stuff I like about it.

  13. The paths to revoking Citizens United is really a logistics issue, not a who’s voicings are valid now, and whose is not.. The real point in the decision is that providing a means for the wealthy to expand their control of our government is inherently un-American. One man, one vote. Cash shouldn’t even be allowed to corrupt the system, be it a Union, or the Koch Brothers. Remember, this was a majority opinion, not an across the board approval by all 9 Justices.

    1. Nope….shall make no law, what about that don’t you understand?

  14. Citizens United was correctly decided once one accepts the proposition that corporations, PACs, unions and other forms of association are legal “persons”. And indeed they are “fictitious persons”, under legal doctrines which go back centuries and which generally serve a useful purpose. The way to overturn Citizens United would be to attack that fiction in this specific application. That might be possible to achieve, if a majority of the Court could be persuaded that this particular legal fiction serves no purpose because such entities cannot vote.

    But there would be consequences to such a ruling, the primary one being that unions (along with corporations and PACs) would lose their ability to expend their members’ membership dollars on politicians and political campaigns. And since union political contributions to Democratic campaigns are several multiples of the dollars spent by corporations and conservative PACs on Republican campaigns, Democrats might want to seriously reconsider whether this is really in their best interests.

    Citizens United somewhat leveled the playing field, which had become seriously tilted in favor of the Democrats. The only way to restore true balance is to remove all thumbs from the scales.

  15. Here’s a thought:
    Instead of telling individuals or corporations, businesses, LLC’s, whatever, what they can do with their money, impose severe penalties on politicians who can be shown to have granted any kind of favoritism to one of their donors.
    Why is it that the one, who accepts the bribe, is not more guilty than the one offering a bribe? It can only be a bribe if it is accepted and redeemed.
    After all, isn’t it the politician, who violates their oath by doing the bidding of a donor, which is not what they would have done absent the “donation”?

    1. this is alrady law, but is relegated to the “special use when it benefits our side” category. Feinstrin’s husband gets a plum real estate deal selling off Postal Service properties, likely to net him millions. Patty Murray’s (senator from Washington State, big D after her name) husband is co-owner of a boat building company in her home state which “happens” tp het some very lucrative Fed contracts. . Harry Reid and family were positioned to make a few $Mn from the Bundy family gertting squeezed out of their Nevada properties because a solar energy project “needs” tthat land, and it goes on. NONE of these corrupt thieves has faced the least bit of trouble over it.

  16. I have no pronlem with the Citizens decision and underlying principles. What I DO have a huge problem with is residents of one state pouring monstrous quantities of cash and influence into local and state issues that do not directly affect them. In case anyone is a bit slow, I am speaking of Moneybags like Bloomburg, Soros, Gates, Allen doing precisely that in states where they do not live. That is not free speech, that is forcing one’s will on millions.

  17. That’s item 23 in the Clinton/Sanders program, isn’t it?

    We demand legal opposition to known lies and their promulgation through the press.

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