A Constitutional Amendment Overturning Citizens United: Really? How?Posted: August 12, 2016
Peter J. Wallison writes: One jarring note in Hillary Clinton’s acceptance speech at the Democratic National Convention was her statement that she would press for a constitutional amendment to overturn Citizens United v. Federal Elections Commission.
“The New York Times is a corporation, so this language would prohibit the Times from editorializing in favor of or against either Ms. Clinton or Donald Trump. Moreover, it might shut down blogs, or firms like Facebook or Twitter, that are corporate vehicles for the expression of opinions about candidates by others.”
This 2009 Supreme Court case held that corporations had the same rights as individuals to make statements for or against the election of a candidate for public office. Particularly difficult to understand was her linking Citizens United to the fact that our economy is not functioning well for many Americans.
“Clearly, closing down newspapers that publish editorials wouldn’t be satisfactory to many Americans, and if extended to other corporate opinion forums would be highly unpopular among the American people. How, then, could the language be modified to allow the New York Times and other corporations to express their views and still overturn Citizens United?”
Taking the last point first, what could be the link between Citizens United and a poorly functioning economy? It’s likely that Ms. Clinton wanted her listeners to infer that corporate power, expressed through independent expenditures—presumably contributions to superpacs or other hidden sources—had distorted the public’s will for the benefit of powerful private parties.
This is a peculiar claim to make after almost eight years of the Obama presidency, in which the most significant government actions—the Dodd-Frank Act, ObamaCare, and various tax increases on corporations and wealthy individuals—could hardly be said to favor corporations or business interests generally. It is also peculiar in light of a recent Wall Street Journal report that hedge fund contributions to Clinton superpacs have outraised those to Trump superpacs by a ratio of more than 2000-to-1 ($46.5 million to $19,000).
But leaving aside these anomalies, what is it about Citizens United that has stirred Ms. Clinton to propose something as drastic as a constitutional amendment, especially one affecting the First Amendment’s right to free speech?
Many of Ms. Clinton’s listeners who cheered her idea probably believe that their right to free speech would not be affected by overturning Citizens United. Of course, the language of the amendment would be determinative, but let’s assume it is as simple as adding new language at the end of the First Amendment as it now reads. Thus, the current language “Congress shall make no law abridging the freedom of speech,” would be supplemented by “except that corporations are prohibited from making political contributions or supporting or opposing any candidate for elective office.”
The New York Times is a corporation, so this language would prohibit the Times from editorializing in favor of or against either Ms. Clinton or Donald Trump. Moreover, it might shut down blogs, or firms like Facebook or Twitter, that are corporate vehicles for the expression of opinions about…(read more)
Peter J. Wallison is the Arthur F. Burns fellow at the American Enterprise Institute. His latest book is “Hidden in Plain Sight: What Really Caused the World’s Worst Financial Crisis and Why It Could Happen Again” (Encounter, 2015).