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Responding to Citizens United: Is a Constitutional Amendment Inevitable?

By Jeremy Miller

Yesterday, the U.S. Senate Committee on the Judiciary held an informative hearing on proposals to amend the Constitution in response to Citizens United.  The hearing comes on the heels of last week’s failed attempt to overcome a Republican filibuster of the DISCLOSE Act, and reflects a growing consensus the time has finally come for a constitutional response.  After all, as former Sen. Fritz Hollings wrote, “Like a dog chasing its tail, Congress has tried for thirty-five years to control spending in federal elections, only to be thwarted by the Supreme Court intent on equating speech with money.”  

Scholars, citizens, and many members of Congress are increasingly concluding we cannot truly fix our badly broken system until we reverse the flawed, inherently undemocratic premise that unlimited spending in elections is merely exercising free speech.  More than 275 local resolutions have passed calling for a constitutional amendment to overturn Citizens United and end the havoc it has unleashed upon our elections.  Legislatures in six states – California, Maryland, Hawaii, Vermont, Rhode Island, and New Mexico – have called on Congress to send an amendment to the states for ratification, with many more having similar resolutions pending.

Congress can do very little aside from passing legislation to require greater disclosure, tighten loopholes created by the dysfunctional Federal Election Commission, and amend tax law to get rid of secret spending by shady 501(c)(4) “social welfare” organizations like Crossroads GPS.  The prospect of the Supreme Court overturning prior decisions that have led to the current predicament is highly doubtful, certainly not until the ideological makeup of the Court shifts dramatically.  Thus, amending the Constitution to overturn Citizens United and prevent flawed decisions in the future may be the only recourse.    

You can watch the full hearing here, but we thought we’d share with you our favorite moment when Sen. Sheldon Whitehouse (D-RI) responded to Ilya Shapiro of the Cato Institute.  Throughout the hearing Mr. Shapiro, who favors unlimited contributions to candidates, continued to peddle the tired canard that disclosing contributions would expose contributors to harassment, boycotts and intimidation.  In response to similar concerns, Justice Scalia wrote: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”  Sen. Whitehouse’s response was equally compelling.

James Madison believed the Constitution should be amended only on “great and extraordinary occasions.”  Thanks to Citizens United, this is one of those occasions.  The prospect of adopting an amendment is daunting, but as Maryland State Senator Jamie Raskin recently stated, “a constitutional amendment always seems impossible until it becomes inevitable.”