Monday, July 25, 2016

Hillary’s Inadvisable Quest: Amending Citizens United out of Existence

     While there may be unappealing choices for President in 2016, with each side’s ticket almost seeming more like a “Suicide Squad” than like people that everyone could admire, some of those candidates’ own choices are even more unappealing. One of those is Hillary Clinton’s recent pledge to field a U.S. constitutional amendment to overturn the Supreme Court’s controversial decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (“CU”). Her rationale is campaign finance reform, which is admittedly an important issue. But is it right for Hillary to suggest amending the Constitution to destroy CU? Or does it seem like she’s almost being a judge in her own case, and disrespecting the powers of the judicial branch of government??

     There hasn’t been an amendment to the Constitution for almost a quarter-century, the most recent being the 27th Amendment, re the salaries of Congresspersons. Ideally, the fewer the amendments, the better: why change the Nation’s top document if the problem could be handled at a lower level, e.g., changing federal or State laws or procedures? But what makes Mrs. Clinton’s proposal especially suspect, is that CU, see id. at, e.g., 887, concerned federal law preventing a film about her, Hillary: The Movie, from being aired right before the 2008 Democratic primaries. (CU overturned that law.) In other words, she wants a constitutional amendment to say that it would’ve been all right to censor criticism of her herself, Hillary Clinton. This looks suspect, to say the least.

     Although Hillary is, then, the worst possible person in the universe to recommend overturning CU by amendment, that doesn’t mean it would be right for anyone else to do it either. The present author believes there’s probably too much big money in American politics; but the best way to handle it might be through stronger financial disclosure requirements, or other means, rather than what the CU opinion deems to be outright censorship of corporate free speech. (Indeed, Clinton herself mentioned disclosure, among various campaign-finance reforms, in her proposal; but those possible good things don’t give her a free pass for her anti-CU amendment proposal.) Indeed, as the Court notes, see CU, 558 U.S. at 897, even a book criticizing a candidate could have been censored under the laws overturned. George Orwell, are you listening?

The Inadvisability of Constitutionally Amending Supreme Court Decisions

     After all, while the Supreme Court can get things wrong, it is an insulting assumption to think that the Court can’t get it right, even if it takes a while. For example, Bowers v. Hardwick was decided in 1986, but it took less than a generation to overturn it, with the Lawrence v. Texas decision in 2003. So, using a constitutional amendment to overturn an undesirable Supreme Court decision, is something like using a sledgehammer to kill a fly. It may “work”, but in a way that is serious overkill. If there is some emergency, e.g., the Court decides that Nazism must be official government policy, then a constitutional amendment (or other extreme solution) may be appropriate. But for something of the magnitude of CU, letting the Court handle it, and keep reweighing the evidence, may be the best idea.

     For example, people have opined that the Court’s statement that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption”, 558 U.S. at 910 (Kennedy, J.), has been empirically proved to be incorrect. Maybe so. But if it is incorrect, the Court can note this and overturn or amend CU itself, rather than having the Constitution amended.

Some More Palatable Constitutional Amendments re Electoral Fairness

     If one wants constitutional amendments aimed at improving electoral fairness, there are plenty of others that could be passed, which may be far more needed, and overdue, than overturning CU. For example, the Electoral College could be abolished, which would make the presidential election a true democracy for the first time, instead of the current “federalist” substitute whereby each State’s vote in the Electoral College is more important than the individual vote of each American. This would’ve prevented the situation in Bush v. Gore from occurring, and the 2000 Presidential election would’ve had a different winner, one voted for by the most Americans.

     Also, the part of Article II, Section 1, Clause 5 of the Constitution which bars naturalized citizens from running for President, could be overturned. Arnold Schwarzenegger might not be the best President (?), but he and similarly-situated immigrants should have a right to run, and people should have a right to vote for them. The new amendment allowing naturalized citizens to run could add a more relevant restriction on running for President, if people are concerned about foreign loyalties of presidential candidates. (The requirement for presidential candidates to be natural-born citizens was passed in order to prevent, say, a British noble from moving to America and running for President with the support of American Tories.)

     That is, the amendment could prevent people with dual (or triple, etc.) citizenships from running for President. People who have another citizenship besides American could simply voluntarily lay down their foreign citizenship(s). Thus, people wouldn’t have their birth held against them (as with Arnold Schwarzenegger), they’d only have their voluntary choices held against them, e.g., a choice to retain Iranian, Russian, or Chinese citizenship when running for president of the U.S.

Trumping the Constitution

     By the way, this essay is not endorsing Donald Trump for President, or condemning Hillary Clinton’s candidacy. Trump has his own problems, such as his Neville Chamberlain stance towards defending northeast-European NATO allies against an invasion by Vladimir Putin. (Also, the 2016 Republican platform has the quirky notion, see id. at 12, that no future constitutional amendment can abolish the First Amendment either on the whole or in part. The sentiment is right—free speech is extremely crucial—, but the understanding of what amending the Constitution means seems a little bit slim. …And why don’t they give the same “immunity from amendment” treatment to the Second Amendment? Would their NRA allies be comfortable with having that palladium of our gunbearing liberties be amended out of existence?)

Free Speech: Even “Undesirables” Have a Right to It

     And the present author isn’t endorsing the Citizens United group at all; but even though not all their ideas are his, they still have a right to speak. If they want to come up with Hillary: The Movie Part 2 before the upcoming election, more power to them, so to speak. And if an opposing group wants to produce and air The Donald: The Movie Part 1 before the election, that’s fine too.

     While we should be suspicious of icky corporate entities, even icky people have a right to speak. (And note that not only corporations supported Citizens United’s lawsuit: the well-left-of-center ACLU, and the well-known union group the AFL-CIO, supported it too.)

Conclusion: Criticizing Hillary and Others, without Restraint

     Ironically, Hillary might be the one needing to spend the most money in this election: Trump is so much of a celebrity and cause célèbre that he hasn’t had to spend much money to gain publicity. (And if Hillary is so interested in transparency re big money, why doesn’t she release her Goldman Sachs speech transcripts?) All of which makes it more awkward that she’s proposing a constitutional amendment against CU.

     Then again, Hillary’s proposal may just be political theater. The difficulty of amending the Constitution, including getting 38 States to ratify the amendment, means that her idea may be just a pipe dream, a talking point to rally “progressives” to support her candidacy. Still, her idea is dangerous and ill-conceived, whether it has a chance of succeeding or not. If she wins this election and runs for re-election in 2020, do we really want it to be a criminal offense to produce media criticizing her?

     In elections, we should usually appreciate more information, not less—even if we dislike the corporate/union/whatever entities producing the information. In the current election, many people may not have decided how to vote yet (if they vote for anyone at all). But thinking people tend to worry about issues like separation of powers; for example, what if a presidential candidate (“executive branch”) tries to outflank a Court decision (“judicial branch”) that allows people to criticize that candidate freely instead of being censored? Thus, it might be best if that candidate weren’t advocating an amendment diminishing the Supreme Court and overturning Citizens United—especially if the candidate’s name is Hillary Clinton.

(Cross-posted, with edits, from Casetext)

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