This week, Rep. Adam Schiff (D-CA) resuscitated an old Democratic Party political enemy: The First Amendment-affirming 2010 U.S. Supreme Court decision of Citizens United v. Federal Election Commission. In Citizens United, the Court held that the Free Speech Clause of the First Amendment generally prohibits the government from restricting independent expenditures for communications by corporations, labor unions, and other similarly situated associations. The relevant statute, the Bipartisan Campaign Reform Act of 2002, had prohibited any corporation from making an “electioneering communication” within 30 days of a primary election or within 60 days of a general election. The Citizens United decision, although well-grounded in the original understanding of the political speech-centric Free Speech Clause, has consistently been lambasted by the Left ever since it was handed down. Many on the Left criticize the “dark money” from corporations that the decision has allegedly allowed to flow out in the open.
Now, Schiff wants to bring back an effort to overturn the decision via constitutional amendment. CNN reports:
Rep. Adam Schiff on Wednesday introduced a constitutional amendment to overturn the Supreme Court’s Citizens United decision, which helped usher in a new era of big money in American elections.
“Our democracy is not for sale. We must stop the flood of dark money from drowning out the voices of everyday citizens,” the California Democrat said in a statement on Twitter. He said such an amendment would “restore power to the American people.”
By a 5-4 ruling, the high court in 2010 swept aside a ban on independent spending by corporations and unions in candidate elections, saying the restrictions amounted to censorship. Outside spending in federal elections has soared from $338 million in 2008, the last presidential election before the ruling, to $1.4 billion in 2016, according to the nonpartisan Center for Responsive Politics.
But, as Justice Kennedy held for the 5-4 Court: “The remedies enacted by law, however, must comply with the First Amendment ; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical pre-election period is not a permissible remedy. Here Congress has created categorical bans on speech that are [constitutionally impermissible].”
Here is how Judge Jim Ho of the U.S. Court of Appeals for the Fifth Circuit formulated it last year in a dissent from a denial of a decision to rehear a case en banc (full disclosure: I previously served as a law clerk for Judge Ho):
Under our Constitution, the people are not subjects, but citizens. As citizens, we enjoy the fundamental right to express our opinions on who does and does not belong in elected office.
To be sure, many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech. But if you don’t like big money in politics, then you should oppose big government in our lives. Because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers, participation in the political process ceases to be merely a citizen’s prerogative — it becomes a human necessity. This is the inevitable result of a government that would be unrecognizable to our Founders. See, e.g., NFIB v. Sebelius, 567 U.S. 519 (2012).
So if there is too much money in politics, it’s because there’s too much government. The size and scope of government makes such spending essential. See, e.g., EMILY’s List v. FEC, 581 F.3d 1, 33 (D.C. Cir. 2009) (Brown, J., concurring) (“The more power is at stake, the more money will be used to shield, deflect, or co-opt it. So long as the government can take and redistribute a man’s livelihood, there will always be money in politics.”).
The Constitution has not been amended since the 27th Amendment was ratified in 1992.