On June 3, 2014, the Senate Judiciary Committee held a hearing on a potential Constitutional Amendment (S.J. Res. 19) to reverse the infamous Citizens United decision. Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell stole the headlines, although they were both examples of negative charisma, trotting out standard talking points at a snail’s pace and with the enthusiasm of coma patients. The real verve at the hearing came from two state senators who shared their knowledge from outside the beltway: Maryland State Senator Jamin Raskin and North Carolina State Senator Floyd McKissick, Jr.
Before we get to the hearing, first here’s a little context.
Citizens United was decided by the Supreme Court in 2010 and created an immediate firestorm, including a chastisement by President Obama of Supreme Court Justices at his first State of the Union Address.
Since Citizens United was decided on constitutional grounds (not statutory grounds) this means there are only two ways to get rid of it. Either the Supreme Court itself can overrule the decision in a later case or the people must amend the Constitution to negate the case. Four years have passed and the slim majority that decided the case has shown no appetite to reverse it.
SCOTUS had a clear chance in 2012 in a case called American Tradition Partnership where Montana tried to defend its corporate expenditure ban. Not only did the Court not change its mind on Citizens United, it did not even give Montana the courtesy of an oral argument. Rather, the Court ruled summarily that Citizens United applied in every state full stop. Without a change in the membership of the Court, the Article V amendment process is the only way to fully reverse course.
Sen. Tom Udall (D-N.M.) introduced S.J. Res. 19 to amend the Constitution to allow Congress and the 50 states to limit (1) the amount of contributions to candidates; and (2) the amount of funds that may be spent by, in support of, or in opposition to such candidates. But it would have a carve-out preventing Congress from infringing on the freedom of the press.
While testifying at the Senate Judiciary hearing on S.J. Res. 19, American Law School Professor and Maryland State Senator Jamie Raskin minced no words explaining why Citizens United was a Constitutional mess. In his written remarks, Raskin noted,
[E]ven as our huge majorities of Americans support reclaiming our democracy, opponents of the Amendment are waving the flag of the First Amendment, as if political democracy and free speech are enemies. But the Citizens United era has nothing to do with free speech and everything to do with plutocratic power. … All Citizens United did was confer a power on CEOs to write corporate treasury checks for political expenditures, without a vote of the shareholders, prior consultation or even disclosure. That breathtaking sleight of hand was imposed on the nation—and on the parties to the case, who had not even brought the constitutional question to the Court—by five Justices who trampled every canon of constitutional avoidance and bypassed multiple obvious statutory rulings for the plaintiffs in order to reach an unnecessary constitutional result.
In response to a question from Sen. Richard Durbin (D-Ill.), Raskin explained away one of the Supreme Court’s most misleading canards. As he said, “Money of course is not speech. Money is property. It’s a medium of exchange. Speech has verbs and adjectives and nouns. It is simply what philosophers call a ‘category error’ to mix them up.”
If Raskin provided the theory, Sen. Floyd McKissick Jr. provided the facts. He was clear about how Citizens United had harmed his home state of North Carolina, which has been bombarded with spending by Art Pope, Koch Industries, and unidentified dark money.
In his written testimony, McKissick noted in particular the damage that Citizens United had caused in state judicial elections: “This year, I watched one of our sitting Supreme Court Justices, Robin Hudson, attacked in the most despicable and dishonest way. … Ads from a dark money group claimed that she coddled child molesters … and it was painful to see her face such dishonest, dishonorable smears. Those ads were character assassination, plain and simple.” McKissick’s oral answers were equally as pointed about how political spending could impact North Carolina’s courts:
Citizens United has profoundly changed the landscape…These entities have gone in there with their dark money and spent over a million dollars to disproportionally impact the outcome of that race—to taint that Supreme Court Justice in a way that was unlike anything we have ever seen.… In North Carolina, the control of that Supreme Court is at stake right now. Why is it a very significant issue? Because these laws that have been enacted in our state that superior court judges are determining to be unconstitutional will ultimately end up there. If you can use these dark money funds to go in there to change the balance on our Supreme Court, it can be done in any state.
Senators Raskin and McKissick are acting as clarions warning the nation about money in politics after Citizens United. As McKissick put it bluntly, “the consequences have been grave.”
So with the Supreme Court digging in its heels, grassroots advocates across the country have been pushing for a constitutional amendment to reverse Citizens United. Sixteen states have voted in favor of resolutions calling for an amendment. In Montana, the vote was a lopsided 75 percent to 25 percent. The energy to change Citizens United is welling up from the States, the question is will a deadlocked Congress hear them or keep reading their own tired talking points?
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.