Citizens United, the First Amendment, and the Ballot

In this post-Occupy, post-Tea Party election, with voters on both sides concerned about the excessive influence of big money in our political system, voters in California and Washington have the chance to vote on whether Congress should pass, and California and Washington ratify, a constitutional amendment overturning the Supreme Court's 2010 Citizens United decision and related decisions. In Citizens United, the court swept away century-old limits on corporate political spending, ultimately opening the door to the flood of super PAC money.

Overturning Citizens United is broadly popular. The vast majority of ordinary people in the United States do not like the role money plays in politics. Roughly 84 percent of Americans believe money has too strong an influence in politics. More than 65 percent believe that the wealthy few have more influence in politics currently than does the middle-class majority. The people are right: studies show that middle income and low income constituents have virtually no effect on the policies that Congress enacts. Instead, Congress's agenda is skewed towards policies supported by a small but highly influential wealthy donor class that often has very different policy desires and priorities than the average American. However, efforts to limit the influence of big money in politics are currently constrained by the Supreme Court's decisions, including (but not limited to) Citizens United and the 1976 Buckley v. Valeo case.

In Buckley, the Supreme Court decided--for the first time--that spending money on politics merits the same First Amendment protections as actual "speech." Once Buckley held that money was protected like speech, restrictions limiting money in politics were judicially prohibited unless they prevented corruption.

None of this needed to happen. The Supreme Court did not have to interpret the Constitution in a way that granted money the same protections as speech. Before the Supreme Court decided Buckley, the case was heard by an influential federal court of appeals in Washington, D.C.. Unlike the Supreme Court, that court of appeals saw limits on political spending as limits on conduct, not speech. The D.C. court of appeals also understood that political equality (having an equal voice at all levels of democracy) was a fundamental right that itself should be protected. The court spoke to the very nature of what many Americans are questioning right now, writing:

"It would be strange indeed if, by extrapolation outward from the basic rights of individuals, the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many because they are able to give and spend more money, and because the amounts they give and spend cannot be limited."

Until Buckley was appealed to the Supreme Court and overturned, the law of the land was that limits on money in politics did not receive the same constitutional scrutiny as limits on speech, and political equality was a legitimate public goal. Since Buckley was overturned, the law for money in politics has gotten worse. In recent years, the Supreme Court has become the most pro-business Court since the 1940s, and is largely disconnected from the realities most people experience.

Despite this push back from the Courts, change is in the air. Already, 17 states have passed resolutions calling for an amendment to overturn Citizens United and related decisions such as Buckley. Critics argue that amending the Constitution to overturn these cases would "break the Constitution" or "be a disaster for free speech." However, this rhetoric defies our lived experience. Was 2009, the year before Citizens United was decided, an era of tyranny? Was the America of the early 1970s, in the years when political equality was ascendant and the Supreme Court had not yet decided Buckley v. Valeo, a repressive state with no freedom of speech? Did the federal court of appeals' observation about wealth and political inequality completely misunderstand the Constitution?

Of course not. Overturning Citizens United, Buckley, and related Supreme Court decisions, whether through the Court itself or through a constitutional amendment, will simply enable the country to begin tackling the complex problem of how to address money in politics. This problem may be hard, but so are other problems left by the Court for citizens and the elected branches of government to solve. Restoring the Constitution to allow the public to debate and decide how best to limit the influence of money in our political system is a necessary first step.