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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?

(Editor's note: This weekend, hundreds of events across the country are protesting the second anniversary of the Supreme Court's Citizens United ruling. This article examines the reforms being championed and obstacles facing this growing progressive movement.)

The movement to overturn the Supreme Court’s controversial  Citizens United  ruling and confront the doctrine of corporate personhood stands at a perilous crossroads. 

Across the country, two distinct strategies are  converging on Congress. More than a million people have signed online petitions. State legislators, city and township governments, Democratic Party groups and unions have sponsored and passed measures in 23 states demanding that Congress pass a constitutional amendment to reassert and elevate the political speech of ordinary citizens and roll back the growing political speech and legal privileges of corporations.  

The two approaches can be seen in the protest signs and sound bites proclaiming, “Money is Not Speech” and “Overturn Corporate Personhood.” But these slogans are not calling for the same remedy, especially when transformed into legal language in 10 proposals that have been introduced in the current Congress.  

The first would address campaign finance setbacks in a 35-year line of Supreme Court rulings, including the  Citizens United ruling in 2010, which deregulated campaign spending by corporations and unions. The second would go further and seek to revoke the status of corporations as persons under the Constitution, rolling back more than a century of Supreme Court rulings under various amendments—not just those concerning political speech.

These two approaches expose an emerging split among progressives with deeper problems that go beyond the steep if not improbable political climb required to adopt any constitutional amendment: passage by two-thirds of Congress followed by ratification by three-quarters of state legislatures. 

With a few exceptions, the growing movement to overturn  Citizens United  and revoke corporate personhood is not being taken seriously beyond America’s liberal communities. The guardians of American capitalism—the  U.S. Chamber of Commerce  and Republican National Committee —do not even feel a need to attack it, unlike recent barbs aimed at the  National Popular Vote campaign to reform the Electoral College.  

Corporate America’s assessment that this activity is not yet a serious threat to their power is also shared by another key sector of the progressive spectrum. Many of the country’s top liberal constitutional scholars have been silent, as this bandwagon has gathered momentum. They sympathize with its goals but think its champions are not only overpromising to grassroots supporters but have not thought out what they want Congress to do. Nor do they think the frontline voices have done a good job explaining what is at stake beyond hurling bumpersticker slogans. In other words, they reach the same conclusion as America’s corporate titans: this clamor is not yet poised to upend the law behind America’s political system.

“I am really excited about the fact that there is so much public interest in this stuff and on the right side—the visceral sense that the Supreme Court has got it wrong,” said Dan Tokaji, co-editor of  Election Law Journal  and an Ohio State University professor of law. “But at the same time I’m uncomfortable with the bumpersticker-like critiques. It's not like there’s a magic bullet. Every solution has a downside. It’s a matter of weighing costs and benefits. And that is especially true in campaign finance reform.”  

“I do think the body of law from  Buckley through Citizens United  to Bennett needs readjustment, and I helped Rep. Donna Edwards draft one potential constitutional amendment,” said Harvard Law School’s  Laurence Tribe , one of the country’s leading constitutional scholars and a man liberals lobbied President Clinton to appoint to the Supreme Court. “But most of the constitutional amendments floating around seem to be seriously misguided; they would do both too much and too little.”