einhverfr's Journal: A Cure Worse than the Disease: Amending the Constitution vs. Citizens United

Recently a set of six senators have proposed a Constitutional Amendment to overturn the controversial Supreme Court case of Citizens United v. FEC which held that corporations were allowed to make unlimited expenditures with regard to elections provided that those were independent expenditures, not coordinated with candidates.

The Citizens United case overturned two previous Supreme Court cases, McConnel v. FEC (which was a case the court evidently had trouble drawing lines over given the fact that 9 justices produced 8 opinions, and pieces of four of the opinions commanded a majority of the court), and Austin v. Michigan Chamber of Commerce. Some First Amendment scholars from across the political spectrum have hailed the decision. For example Eugene Volokh, a Republican, has generally felt this was an important protection of Constitutional liberties, and the ACLU played an important role in filing amicus briefs in favor of Citizens United, and has been very much in favor of the decision. Others have seen it as an open invitation to Corporations to meddle in politics.

Before we get into the Constitutional Amendment and why everyone, on both sides of this issue, should be opposed to it, it's worth noting that the questions of first amendment law in election finance cases seeks to balance two competing interests. The first is to ensure that the people can write and publish on political topics surrounding an election, and the second is to ensure the integrity of the elections. Citizens United draws this line by saying that independent expenditures are different from coordinated expenditures (5-4 holding, but the dissent didn't offer an alternative except to wait for another case), and that disclosure laws were entirely Constitutional (8-1 holding). The fundamental problem is that while money is not speech, regulating how people can spend money in order to express themselves regulates a lot of speech. The court correctly noted that the Constitution didn't differentiate between, say, the New York Times and, say, Merke, and therefore, couldn't grant the government the ability to ban Merke from buying television ads without banning the New York Times' right to print editorials in favor or opposed to candidates.

Indeed the concern over freedom of the press was at the core of Citizens United. Surely when Alito asked S. G. Malcolm Stewart if the government could Constitutionally ban books, he had no idea that the only answer S. G. Stewart could give would be "yes" (an answer repeated by S. G. Kagan at rehearing, see the same link above for all oral argument), and hence a question probably intended to address an issue of statutory interpretation set the stage for a Constitutional showdown. To be fair, both Stewart and Kagan tried very hard to avoid giving that answer but both were unable to come up with any alternative that would save the law as written, because the Supreme Court tends to err more on the side of facial challenges (striking down laws) than as-applied challenges (mandating exceptions) when it comes to freedom of expression. The dissent felt the correct decision was to say, in essence, "we don't have sufficient record to make this decision. Declare it as moot and let them bring another case to us through the courts."

Citizens United was hailed as a major First Amendment victory by the ACLU, and many other organizations which work on First Amendment issues, and by major First Amendment scholars such as Eugene Volokh. However, many others have seen it as a doorway to corporate tampering with our elections.

However, for any controversy, there are solutions that are far worse than the cure. This is one of them. The relevant portion of the proposed Amendment is:

SECTION1. Congress shall have power to regulate the raising and spending of money and in kind equivalents with respect to Federal elections, including through setting limits onâ" ...
(2) the amount of expenditures that may be made by, in support of, or in opposition to such candidates.

The omitted paragraph 1 allows the government to regulate gifts and donations to candidates, something already within the power of the government. Section 2 grants identical powers to the states.

Now, it's important to note what is covered under Section 1 paragraph 2. In essence any money spent communicating a message on an election for or against a candidate in any way falls under government power. Presumably this could include purchasing gas to go to a rally, publishing pamphlets, buying Obama's books to give to undecided friends in 2012..... These are all independent expenditures and could fall under government regulation under such an amendment. And nowhere in the amendment does the word 'corporation' appear.

In essence the proposed amendment is that we trust to Congress the ability to arbitrarily limit the freedom of the press not only by corporations but also by natural persons. Such an amendment would prevent a first amendment challenge to some laws already on the books (say, a foreigner here on a student visa publishes a blog posting on a site that he/she pays for hosting on opposing an anti-immigrant candidate. This is already against the text of campaign finance law, but would probably allow either an as-applied or facial challenge to the law even before Citizens United but that would be taken away).

This proposed Constitutional Amendment then goes well beyond repealing Citizens United in that it takes away Constitutional protections that each of us enjoy.

Now, the subject of independent expenditures is a controversial one. However, given that only defenders of Citizens United have offered any data defending their side, I am forced to at least tentatively conclude that the ACLU is right on this one. However for the purpose of the rest of this post, I will assume that this is a serious problem and offer recommendations for changing this proposed amendment so that it does not strip us all of fundamental Constitutional rights.

If the problem is a concentration of power over spending in our elections, it seems to me unwise to further concentrate that power in the hands of the state. Instead it would seem to me that granting power to Congress to curb the worst abuses only, while preserving the power of the common man would be preferable. In this case, if the problem is specifically corporate spending, then allow Congress to limit Expenditures, not part of profit-making goods and services offered at standard prices, on the parts of for-profit corporations only. This would be sufficiently broad enough to ban Corporate donations to Citizens United and the ACLU, but not sufficiently broad to regulate what fliers and pamphlets you or I can print to distribute. It would allow Congress to prevent Corporations from offering special discounts for such material, but would not prevent them from offering standard discounts (such as volume discounts available to everyone else).

In the end, it's easy to get whipped up into a frenzy and believe that because we must do something that this must be done. This is unfortunately common. We see on the other side of our politics, amendments to state Constitutions which forbid state judges from using foreign laws to inform decisions, forgetting that in international contracts or other cases where conflict of laws issues may come up, these foreign laws are extremely relevant to the cases. Like this present proposal, the problem is with being overbroad, and therefore causing a great deal of harm to our basic freedoms in the name of solving problems.

Every American should be opposed to this amendment. Those who oppose Citizens United and seek to overturn it should insist that the amendment to do so be narrow. Those who support it should listen to the others but make sure their concerns are addressed.