Justice Antonin Scalia helped make the 5-4 majority in Citizens United v. Federal Election Commission. That disastrous mandate of unlimited political spending from corporations, billionaires and some unions looms over his legacy and over the question of his successor. Many reformers are calling for President Obama to use Citizens United as a litmus test in nominating Justice Scalia’s successor, yet it is a mistake to assume that correction of Citizens United and its impacts turn on the identity of the next justice. The 28th Amendment is both more likely and more effective to correct Citizens United than a new justice.
The 28th Amendment to restore the power of Americans to enact limits on spending and contributions in elections is already well on the way. Millions of Americans have petitioned Congress for such an amendment, sixteen states and 700 cities and towns have passed 28th Amendment resolutions, and repeated polls and ballot initiative votes continue to show cross-partisan support for the 28th Amendment at levels exceeding 75 percent. Even jurists such as retired Justice John Paul Stevens, who dissented in Citizens United and called it a “radical departure from settled First Amendment law,” has urged passage of the 28th Amendment.
First, Obama may not get a justice approved before he completes his term. Senate Majority Leader Mitch McConnellMitch McConnellNew DNC chairman wastes no time going after Trump Dem 2020 hopefuls lead pack in opposing Trump Cabinet picks Though flawed, complex Medicaid block grants have fighting chance MORE (R-Ky.), one of the largest beneficiaries of the Citizens United-approvedspending by corporations in politics, insists that the Senate will not even consider any nominee until the next administration.
Even if an Obama nomination succeeds, no one can know how a Supreme Court justice will decide cases once on the Court. Virtually every modern president has been surprised and disappointed by his appointments to the Court. Republican presidents appointed Justices Stevens, O’Connor and Souter, who vigorously oppose Citizens United (and Justice Rehnquist, who opposed entirely the creation of new “speech” rights for corporations), while Democratic presidents appointed Justices like William Brennan and Harry Blackmun, who helped fabricate unprecedented “speech” rights for corporations.
In addition, a new Justice may reject Citizens United but that does not tell us what will replace Citizens United. Before Citizens United, the status quo 5-4 Supreme Court line-up dictated that when it comes to elections, money is speech but some limits on that money, particularly with respect to spending by corporations and unions, are allowed, so long as the limits are not too effective. Walking back to that situation is not acceptable. We need a 28th Amendment that restores our Constitutional foundation of equal human rights and responsibilities to participate in elections and to be represented, with reforms built on that foundation to protect the speech and other rights and responsibilities of all Americans.
An undue (and unrealistic) focus on the Supreme Court alone also exacerbates the growing hyper-partisan politicization of the Court. It denies all but a few Americans the power and the responsibility to be heard on this Constitutional question. It reinforces the false and damaging misperception that we are not citizens in a Republic but spectators or, if we’re lucky, beneficiaries of an enlightened but unelected legal class and a divided, unelected Court.
Constitutional amendments, not new Supreme Court Justices, ended slavery, guaranteed equal protection and voting rights regardless of race, won the vote for women, enabled a progressive income tax, ended the poll tax barrier to voting, and prevented States from depriving Americans over eighteen years old the right to vote based on age.
Eight times Americans used the Constitutional amendment process to overturn Supreme Court decisions. In each instance, numerous changes in the line-up of Supreme Court Justices failed to move the Court from its error. Between the Court’s 1875 decision that denied women the right to vote and the 19th Amendment that won that right in 1920, twenty-five Supreme Court Justices died or retired and were replaced by new justices. Justices came and went for decades, and millions of American women lived and died without a vote or a voice in our democracy.
From 1895, when the Supreme Court struck down the progressive income tax at the height of the Gilded Age, to 1913 when the 17th Amendment was ratified, ten new Supreme Court Justices joined the Court. In all that time, the Court did nothing to correct its denial of a basic economic policy choice that Americans are free to make.
In 1937 and again in 1951, the Supreme Court rejected Constitutional challenges to poll taxes. Until the 24th Amendment to end poll taxes in federal elections, eighteen new Supreme Court Justices arrived, yet the Court remained unmoved by millions of Americans who were denied a vote and representation based on their race and economic class.
With more and more Americans now joining the work for the 28th Amendment to defend our core beliefs that all human beings have Constitutional rights, all citizens are equal, and all of us are responsible for effective self-government, we will bring the Citizens United regime to an end.
Clements is president of American Promise, co-founder of Free Speech For People and author of Corporations Are Not People: Reclaiming Democracy From Big Money and Global Corporations.