A Constitutional Amendment to Reverse Citizens United? (Politico Arena)


On the surface, a Constitutional amendment overturning Citizens United might seem like a golden ticket for those who were stunned by the Court's decision.  An amendment would appear to respond to the problem of huge corporate expenditures and contributions often made with anonymous funds, and would place such restrictions beyond the reach of the heavy-handed Roberts Court.  But while an effort the likes of Rep. Schiff’s is admirable, it is not necessarily the best answer.

It is certainly understandable why many favor a Constitutional amendment to counter Citizens United, which overturned nearly 100 years of laws.  But Constitutional amendments are nearly impossible to pass - according to C-SPAN, up to 200 amendments are proposed every term of Congress - and even once that mountain is scaled, are often possible to circumvent.

Rep. Schiff’s proposed amendment would allow for “content-neutral limitations on private campaign contributions or independent political campaign expenditures,” yet the regulation of “expenditures” as used in campaign finance law is, by definition, content-based in some respects (i.e., ads that contain express advocacy or references to candidates, etc.).  And many shadow super PACs (c4s and c6s) are claiming - to date successfully - that they are not making “expenditures” as defined by statute and therefore might not be captured by an amendment.

Advocates for fixing our current money-run-amok system are understandably frustrated.  But now is the time to focus energies on improving disclosure, shifting the incentives for small-donor fundraising, getting resources to candidates so they don't have to sell their soul to large donors, and energizing public opinion.  Citizens United will eventually be overturned, and a constitutional amendment might eventually pass, but there is much to do now.

This opinion piece by Legal Center Policy Director Meredith McGehee originally appeared in Politico's Arena on June 19, 2012.