A Supreme Injustice

January’s Supreme Court ruling in Citizens United v. FEC stirred passionate and opposing responses. In a 5-4 decision, the Court ruled that laws designed to curb corporate influence in politics violate the First Amendment’s guarantee of free speech. The ruling hinged on the idea that corporations are ​“persons” entitled to the same constitutional protections as individuals. 

Left-leaning groups assailed the decision for tearing down a barrier that has protected American political life from overwhelming corporate influence. ​“What the Supreme Court … has done,” wrote Adam McKay, in a piece published at the Huffington Post, ​“is nothing short of a violent coup for the corporations to seize control of our government.” 

In his State of the Union address, President Obama argued that the Citizens United ruling ​“will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” He urged Congress to write legislation that reverses the ruling’s effects, and he said that promoting such legislation will be a priority for his administration. 

Long before the president promised his support, though, groups that opposed the ruling had begun mobilizing: they held rallies, sent emails, created websites, started petitions. What do they aim to do, and how do they propose going about it? 

Here’s a summary of possible routes of resistance: 

Impeach one or more of the offending Justices. Though there are some calls for it around the blogosphere, there is little in the way of a concrete push for impeachment. With good reason. The last Justice to be impeached was Samuel Chase, in 1805. He was easily acquitted. 

Amend the Constitution. Several organizations have created online petitions calling for an amendment to the Constitution banning corporate money in politics. (See ​“Why We Must Amend Our Constitution” on page 14.)

Successfully proposing an amendment would require the approval of two-thirds of both houses of Congress; alternatively, two-thirds of the nation’s state legislatures would have to seek a Constitutional Convention. Ratifying an amendment would require passage by three-fourths of state legislatures or ratifying conventions.

The most recent Constitutional amendment was ratified in 1992.

Pass campaign-finance laws. The remedy endorsed by President Obama in his SOTU address – new legislation – is the most practical near-term response to Citizens United. The ruling gave organizations like Public Campaign, which lobbies on behalf of public financing of elections, new ammunition and a boost of organizing energy. On its website (pub​li​cam​paign​.org), Public Campaign directs readers to a petition in support of the ​“Fair Elections Now Act”. The Act ​“will allow candidates to run for office using a mixture of small donations and limited public financing.” It would set a limit of $100 on individual donations, and the bill has bi-partisan support: it is sponsored by two Democratic senators, a Democratic representative, and a Republican representative. 

Public Campaign is part of a larger coalition of organizations that are agitating for campaign-finance reform; others include Common Cause and Democracy Matters.

Another tack is to address the influence of lobbyists on the political process. But accomplishing either campaign-finance reform or limits on lobbying will be extremely difficult. As a contributor at Sco​tus​blog​.com noted, proposed reforms that address the influence of money in politics will meet stiff resistance: ​“Given the degree to which many Republicans in Congress had wished longingly for a First Amendment decision precisely like the one that emerged in Citizens United, it is by no means a certainty than the GOP leaders would enlist in what the President’s statement suggested should be a ​‘bipartisan’ effort.”

Gear up for the long haul. It may be that changing the composition of the Court by winning presidential elections is the only way to reverse the Citizens United ruling. Doug Kendall, president of the Constitutional Accountability Center, a public interest law firm, put it this way: ​“While progressives should feel free to pursue creative ways in the wake of the decision to limit corporate efforts to influence electoral politics (boycotts, stockholder protests, etc.), we should not kid ourselves about an effective legislative fix.” Kendall suggested that there are only two available options: amend the Constitution, or ​“fight a long-term battle over the future of the Supreme Court.” The latter option is the only one that has a chance of succeeding, he believes. 

Kendall noted that the Citizens United ruling was very much the end result of a strategy conceived decades ago. In 1971, Lewis Powell, then a corporate lawyer, suggested to the U.S. Chamber of Commerce that ​“the judiciary may be the most important instrument for social, economic and political change.” Richard Nixon nominated Powell for the Supreme Court the same year. Thus began what Kendall describes as ​“a 40-year period in which conservative legal activists have fought tooth and nail to move the federal judiciary sharply to the right.”

In other words, the energy invested in petition signing and pushing legislation is healthy and necessary. But progressives shouldn’t pin their hopes on immediate results. Citizens United required decades of energetic organizing and agitating. Reversing it may require an equal – and opposite – response.