November 05, 2016
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How the Citizens United decision could be undone

How the Citizens United Decision Could be Undone

By John Dunbar

It’s taken a few years, but the 2010 Supreme Court case crucial to the creation of super PACs and “dark money” nonprofits has entered the political zeitgeist. More and more Americans are seeing and feeling the effect of that momentous decision, and they aren’t happy about it – regardless of party affiliation.

In September, a Bloomberg poll about the facts behind the Citizens United v. Federal Election Commission decision found that 80 percent of Republicans and 83 percent of Democrats opposed it.

So now what?

Reformers offer two general approaches to killing Citizens United: The Supreme Court could reverse itself or Congress and the states could amend the U.S. Constitution.

Quick background: What Citizens United did

In a nutshell, the 5-4 Citizens United decision allowed corporations (including certain nonprofits) and labor unions to expand their role in political campaigns.

Many outside organizations now could raise and spend unlimited amounts of money to support or oppose a candidate.

The high court reasoned that as long as these unlimited funds aren’t spent in coordination (a crucial and controversial distinction) with the actual campaign, they do not “give rise to corruption or the appearance of corruption.” Thus, they would be legal from that point forward.

Flash ahead to the 2016 presidential election. The legal seeds sewn in 2010 have germinated into super PACs such as Right to Rise USA, which former Florida Gov. Jeb Bush helped create and ultimately raised more than $100 million to support one person: Bush. But Right to Rise USA asserted it was not coordinating with the Bush campaign.

The Citizens United decision also paved the way for the creation of another new player in elections – dark money groups.

These nonprofits can function the same way as super PACs do as long as election activity is not their primary activity.

Deciding whether these groups are really primarily about promoting social welfare, rather than politics, has been the source of considerable controversy.

This distinction is important — unlike super PACs, these “social welfare” groups do not have to report who funds them, allowing donors to avoid publicity.

How to amend the Constitution

Passing a constitutional amendment is a daunting assignment.

A two-thirds vote of approval would be required in both the U.S. House and U.S. Senate, which often can’t achieve simple majorities on seemingly perfunctory matters. And then, three-fourths – 38 – of the nation’s states would have to ratify an amendment.

The last time this occurred it took 203 years. The 27th Amendment, which was introduced in 1789, wasn’t approved until 1992. It prohibits raises for members of Congress from going into effect until the start of the next term.

The alternative would be a constitutional convention, which is even less likely. Two-thirds of the states would have to demand it. It’s happened exactly once in U.S. history – and that was the first one that created the Constitution.

Despite the high bar, Scott Swenson, spokesman for good government group Common Cause, says it could happen.

“It is the one thing that Americans agree on left, right and center,” he said. “That this is one of the worst Supreme Court decisions in history and it will be overturned. What we need is a Congress that will send it to the states.”

In addition to the political challenges, there’s the wording of the amendment itself. The concern is that it would be too strongly worded or not strongly worded enough.

To date, a proposed “Democracy for All Amendment” achieved the most support among anti-Citizens United amendment proposals.

The joint resolution would give state and federal government the power to “regulate and set limits on the raising and spending of money by candidates and others to influence elections.” It also would empower the government to prohibit corporations “or other artificial entities created by law” from spending money to influence elections.

It received 54 votes in the Senate in 2014, but needed 60 to move forward.

“It’s really tough to draft,” said Paul S. Ryan, deputy executive director and attorney with the Campaign Legal Center, which is working to undo the effects of the decision. “The purpose, in effect, is to regulate and restrict private behavior. That’s only happened once, with the Prohibition amendment. You know how that worked out.”

But there are those who say an amendment is the better way to go, like Jeff Clements, author of “Corporations are Not People: Reclaiming Democracy from Big Money and Global Corporations.”

“Constitutional amendments – not new Supreme Court justices – ended slavery, guaranteed equal protection and voting rights regardless of race, won the vote for women, enabled a progressive income tax, ended the poll tax barrier to voting and prevented states from depriving Americans over 18 years old the right to vote based on age,” he wrote in The Hill last month.

How to get the Supreme Court to reverse

An amendment, says law professor and campaign finance expert Rick Hasen of the University of California, Irvine, isn’t realistic, at least not in the current environment.

“It’s a political nonstarter,” he said, pointing to the Democracy for All Amendment, which did not receive a single Republican vote. “If you really want to get rid of super PACs, we would need to somehow change the understanding of the First Amendment.”

To do that, the 1976 decision Buckley v. Valeo, in which the Supreme Court basically said political spending is akin to free speech, would need revisiting.

“Certain but not all spending limits have the potential to be upheld as constitutional and strike the right balance with a liberal Supreme Court,” Hasen said.

With Justice Antonin Scalia’s death, there’s a chance the ideological balance of the court may shift. The conservative justice voted in the majority in the Citizens United case, and was not a friend of the campaign finance reform community, though he was bullish on disclosure of donors.

So the selection of the next justice is crucial. If the Senate confirms someone who opposes Citizens United – either a nominee from Obama or his White House successor – there’s a real possibility the high court might reverse itself.

How might that happen?

First, it would require a lawsuit of some sort that would need to wind its way through the legal system.

A state or even a city could pass a new law banning corporate contributions to outside groups outright. Or enforce such a law that’s already on the books. Or pass a ballot initiative.

In the current atmosphere, such a law would inevitably be challenged – and such a challenge could eventually make its way to the U.S. Supreme Court. But even if this were to happen, say campaign finance experts, the process would still take years.

Nick Penniman, executive director of campaign finance reform group Issue One, says there is nothing in the pipeline as far as cases but that there could be a reversal within five or six years.

Short of a reversal, there are incremental reforms that could make a difference. Advocates are, for example, pushing for public financing of campaigns and more robust disclosure of contributions.

Even if Citizens United is reversed, however, that won’t magically create a system that everyone is happy with, says David Donnelly of Every Voice, a campaign finance reform advocate. The nation still ends up with the system that existed in 2009, which was “not working very well.”

“There’s no silver bullet,” Donnelly said.

John Dunbar is political editor and deputy executive editor for The Center for Public Integrity.

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