A Specific Proposal That Helps Give Us a Sense of What Getting Rid of Citizens United Might Entail

The 5-4 Supreme Court ruling in Citizens United v. Federal Election Commission six years ago is getting a lot of play this year, because the campaign finance system for which it stands powerfully affects the presidential election process currently underway, because prominent presidential candidates have attacked the decision forcefully, and because its continued vitality may be affected by Justice Scalia’s recent and unexpected passing. People who care about the campaign finance issue should keep an eye on what’s happening in California, where a member of the California legislature last week (re)initiated the process of placing on the November general election ballot an advisory measure, Proposition 49, that would ask for the voters’ answer to the following question:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010), and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are rights of natural persons only?

(This is actually the second time the legislature has tried to put Proposition 49 on the ballot—the first time being in 2014. But in August of that year the California Supreme Court, in a somewhat surprising 5-1 ruling—the court was temporarily down one member, sound familiar?—decided to issue a temporary stay blocking the measure from the November ballot, on the ground that the California Constitution likely prohibited the legislature from placing advisory measures like this before the voters. Many observers were disappointed by this ruling; I myself wrote an essay for this website critiquing the reasoning behind the stay, and argued that, under the California Constitution, the measure should be allowed to go before the voters. Happily, after further briefs were filed and the California Supreme Court had more time to reflect on the issue, the court ruled two months ago that Proposition 49 could indeed be placed on the ballot. It is good to see that briefing and time for careful thought can lead to a more defensible result.)

So what can we learn from Proposition 49? Most importantly, this proposal highlights just how hard it would be to craft a workable constitutional amendment to overturn Citizens United at the federal level. Let me be clear that I find many of the current Court’s campaign finance decisions to be troubling and unconvincing (especially some cases dealing with aggregate contribution limits and public finance regimes, such as McCutcheon v. FEC and Arizona Free Enterprise Club’s Freedom Club v. Bennett). But the language of Proposition 49 illustrates the drafting challenges involved in any constitutional amendment process.

The text of Proposition 49 indicates a desire to accomplish a number of things: (1) overturn Citizens United itself; (2) overturn “other applicable judicial precedents”; (3) to “allow full regulation or limitation of campaign contributions and spending”; (4) to “ensure that all citizens, regardless of wealth, may express their views to one another”; and (5) “to make clear that the rights protected by the United States Constitution are rights of natural persons only.”

Let us take these one at a time. First is the matter of overturning Citizens United. That case held that corporations and unions enjoyed a First Amendment right to engage in independent partisan expenditures in support of or against candidates for office even in the weeks leading up to a federal election. Note that Citizens United did not involve corporate or union contributions to political campaigns (giving money to candidate for them to spend), but so-called independent expenditures that expressed a view on candidates. If we overturned Citizens United by simply saying (via constitutional amendment), that corporations (and unions) can be subject to (reasonable) independent expenditure limitations, would such limits apply to the New York Times Corporation in the amount of money it spends on editorials in support of or against particular candidates? Even some of its news coverage might be thought to implicitly support or attack particular candidacies. And if we try to protect organizations like the NYT by exempting “media”- or “news”- oriented corporations, won’t other corporations simply spin off corporate media units to engage in this speech? And can any distinction between “media” organizations and other organizations really survive in the age of the Internet and blogging?

Second is the matter of “other applicable judicial precedents.” Which precedents are we talking about? Cases like McCutcheon and Arizona Free Enterprise Club (dealing, respectively, with aggregate contribution limits and public finance matching programs), or also Buckley v. Valeo, which held in 1976 that expenditures are constitutionally protected even as contributions can be more aggressively regulated? Or perhaps we are talking about lower court rulings that define “independent expenditures” too broadly and that permit a great deal of coordination between candidate campaigns and independent expenders? The big problem here is that Citizens United, like “the Patriot Act” is sometimes used to describe a universe of things beyond a particular case (or statute), but the contours of that universe are unclear. If the voters are going to be asked about their views for purposes of enlightening the legislative process, perhaps more precision here would have been helpful.

Third, what does “full regulation or limitation of campaign contributions and spending” mean? That all contributions can be banned? That all independent spending (even by individuals rather than corporations) can be severely restricted? “Full regulation or limitation” is not a constitutional term of art—it does not come from any Supreme Court rulings where its meaning has been worked out over time and over cases. For those who think that money facilitates speech (even if it is not exactly speech itself), “full regulation or limitation” might be a very scary standard.

Also scary to many folks might be the idea “ensur[ing] that all citizens, regardless of wealth, may express their views to one another,” if the “regardless of wealth” term means that all persons must be able to have equally loud voices. In Buckley v. Valeo, the Court observed that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . . ” Even if one disagrees with this premise of Buckley that any government leveling is illicit, and instead thinks that some may need to have their voices dampened that others may be heard at all, it is a much further step to say that all speakers must have the capacity to speak at the same volume. It’s hard to know what that would mean in practice, but even if would could measure, in total, how many resources each person possessed to devote to expressive activities, trying to equalize these starting points would seem radical indeed. And if proponents of a constitutional amendment mean only that everyone should have some minimal but meaningful chance to express his or her views, we probably would need more clarity on what that minimal chance entails.

Finally, does Proposition 49 seek to promote an amendment that limits all “rights protected by the United States Constitution are rights [to] natural persons only?” Or are we talking instead about expressive rights only? Shouldn’t corporations be entitled to just compensation when their property is taken for public use? Or to due process when they are subject to civil or criminal liability? Here too, the drafters of Proposition 49 don’t make clear how far they really would like to go.

None of this is to say the constitutional amendment process is useless in dealing with the campaign finance problem the country confronts. It is only to say that, while permissible, advisory measures like Proposition 49 that ask exaggerated questions, are of limited assistance in thinking meaningfully about the specific kinds of language we might include in our Constitution to make elections (and policy results) more fair and democratically responsive.