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The Uphill Battle Against Citizens United: Tricky Legal Terrain and No Easy Fixes

Is there anything in the years to come that can lead to a victory against the notorious Supreme Court decision?

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In Citizens United , the Court turned a relatively narrow case into a giant leap forward for corporate electioneering. The  ruling did a handful of things. It first struck down a prohibition that barred broadcasting a certain type of political ad—almost always negative and from sponsors who barely identified themselves—in the 60 days before an election. That provision in a 2002 campaign reform  law tried to elevate political debate. It then overturned parts of prior Supreme Court rulings that said independent campaign spending by corporations could be regulated. Thus it undermined a century-old regime barring direct corporate participation in elections, elevating corporate political rights to the same level as those of citizens.  

The Court’s ideological conservative majority did not stop with  Citizens United . Last June, it chipped away at public financing laws by siding with  Buckley’s protection of independently wealthy candidates. In  Arizona Free Enterprise Club v. Bennett , it struck down a matching funds formula in Arizona’s public financing law that gave additional funds to publicly financed candidates if a rival personally spent more than a stated amount. The  ruling gutted the law but said public financing was still permissible.  

Too Little, Too Much

The amendment proposals fall into two categories with some overlap in between. The first group, reflecting the slogan, "Money is not Speech," takes a legislative empowerment approach. They seek to return the campaign finance landscape to pre- Buckley days, stating that Congress and the states have power to regulate the raising and spending of money in elections. Proposals by Rep. Donna Edwards, D-Maryland, on the  House side, and Sen. Tom Udall, D-New Mexico, on the Senate  side, take this route. In other words, they seek to reclaim the power to regulate money in politics from the Supreme Court. 

The opening clause in Edwards’  proposal, “Nothing in this Constitution shall prohibit Congress and the States,” is very important, Tribe said, because it specifically tells the Supreme Court how the Constitution is  not to be read. “Proposals that merely affirm legislative power to enact spending caps on corporations or individuals,” Tribe pointed out, “could well fail to achieve their objectives because they don’t directly address how the Supreme Court has read the First Amendment’s restrictions on such legislative power.”  

However, Edwards’ language does not necessarily address some recent political trends that did not exist when  Buckley was issued. Supposedly “independent” spending by very rich individuals, such as Sheldon Adelson’s recent $5 million  gift to a super PAC supporting Newt Gingrich, would not be limited by her proposal because it would only limit “funds for political activity by any corporation.” 

Tribe said Congress had to be more precise to not leave any room for the Court to meddle. Slightly more specific wording that addresses both wealthy individuals and corporations was in Udall’s proposal, which seeks broader authority to regulate donations and spending “of money and in-kind equivalents with respect to Federal elections.”  

Neither the Edwards nor the Udall resolutions mention public financing, however. Edwards’ proposal would stop corporate spending in ballot initiatives, which would reverse the Court’s  Bellotti decision. That could significantly change political dynamics in initiative states like California, where big business routinely spends millions on these campaigns. Udall’s proposal, in contrast, only focuses on candidate elections.   

Another legislative empowerment approach is a bipartisan  proposal from Rep. Walter Jones, R-SC, and Rep. John Yarmouth, D-KY. It would allow limits on people or groups that might seek to monopolize political microphones and also would revive public financing. It seeks to close a loophole that emerged after Buckley where political groups  evaded regulation by raising issues associated with the candidates, instead of specific words urging their election or defeat. It also says Congress can create a “mandatory public financing system” and it would make Election Day a holiday.