Does 'Citizens United' warrant a constitutional amendment?
Since the U.S. Supreme Court’s landmark Citizens United ruling in 2010, many Democratic lawmakers and advocacy groups have proposed constitutional amendments to overturn the controversial decision — or attempt to curb its impact. But not everyone who disagrees with the decision thinks that’s the right approach to reducing corporate influence in politics.
Opponents of the decision — which held that unlimited expenditures by corporations to independently advocate for or against federal candidates did not pose a threat of corrupting politicians — gathered at a forum Tuesday in Washington, D.C.
There, the case was decried as a “product of judicial activism” by Kent Greenfield, a law professor at Boston College Law School. And Jamie Raskin, a Democratic state senator in Maryland who is also a law professor at American University’s Washington College of Law, said the ruling has helped move the nation toward a government “by, of and for the corporations.”
But while both Greenfield and Raskin railed against the threats they see from the influence of corporate money in elections, the men were in opposite corners about whether a constitutional amendment was the best way to fight it.
Greenfield fervently opposes such proposals — which run the gamut from provisions saying simply that “corporations are not people” to measures asserting that Congress and state legislatures have the right to regulate corporate political spending — while Raskin supports them.
“The problem with most of the amendments out there is that they want to burn down the house to get rid of termites,” Greenfield said. “We don’t have to take corporations and say that none of them ever have any constitutional rights in order to solve the problem.”
Greenfield’s ally on the panel — which was hosted by the nonprofit Alliance for Justice — Mark Schmitt, a senior fellow at the progressive Roosevelt Institute, also opposes the idea of a constitutional amendment.
“It’s sending the message that you can’t do anything about money in politics until you pass this amendment,” Schmitt said.
Raskin disagreed, and defended the constitutional push.
“Let’s rebuild the wall of separation between corporate treasury wealth and American political elections,” said Raskin, who as a lawmaker has supported efforts in Maryland to pass a constitutional amendment and introduced legislation to create public financing.
While he noted that a constitutional amendment is “not a panacea,” Raskin said it presents “an organizing vision” and a “flag in the sand.”
He said activists could look to the suffragette movement as a source of hope.
Advocacy for a constitutional amendment, Raskin argued, helped “catalyze” suffragettes after the 1875 U.S. Supreme Court ruling in Minor v. Happersett that said the Constitution did not grant women the right to vote. Over the subsequent decades, the movement achieved many victories for women’s rights, including the ratification of the 19th Amendment in 1920 that finally gave women the right to vote.
“The state doesn’t have to permit its own creature to consume it,” he said, quoting a famous line from former U.S. Supreme Court Justice Byron White.
“Corporations have to be subordinate to the state legislatures,” Raskin continued. “Now under Citizens United, basically, the states have to allow their own creatures to devour them.”
Greenfield, who agreed that corporations wield undue power, remained unconvinced.
“I would prefer organizing to be done around something that, if passed, would be a good thing,” he said.
“Let’s talk about making corporations more internally democratic,” Greenfield continued. “If corporations themselves were more democratic, then the fact that they speak would be less problematic.”
On these points, too, Greenfield met with resistance from Raskin.
While Raskin agreed that internal changes within corporations were a good idea, he contended that increased transparency and involvement among shareholders wasn’t enough.
“We can’t leave it to shareholders to protect the rest of us,” Raskin said.
Reprinted by permission of The Center for Public Integrity.