Congressmen, activists look to overturn Citizens United decision
September 6, 2019

Demonstrators demanding the Citizens United decision be overturned by protesting in front of the Supreme Court building in Washington, DC, in 2017.

By Igor Studenkov

U.S. Rep. Adam Schiff (D-CA-28), chair of the House’s Select Committee on Intelligence, on May 8 introduced an amendment that would use a constitutional amendment to undo the U.S. Supreme Court’s Citizens United decision. The decision held that restricting spending by corporations, nonprofit organizations, and labor unions restricted free speech, which made it much easier for those organizations to make large campaign contributions to political candidates.

Schiff’s action is just the latest volley in the ongoing attempts by various politicians and activist groups to overturn the decision, including efforts to allow federal and state governments to limit campaign financing once again and to reject the Supreme Court precedent treating organizations as living people for the constitutional purposes.

Supporters of overturning the decision point out that allowing unlimited monetary contributions gives corporations disproportionate influence on elections, to the detriment of the average voter and to democracy. Supporters of the decision frame it as an issue of free speech and argue lawmakers should restrict speech and that tightening regulations could open the door for the Federal government to restrict which organizations can express political opinions.

The Citizens United ruling resulted from a 2008 lawsuit by the conservative political organization of the same name, which argued it should be able to air and advertise a film critical of then-presidential candidate Hillary Clinton. At the time, election law forbade corporations and labor unions from campaigning within 30 days of a primary and 60 days of a general election. On Jan. 21, 2010, the Supreme Court ruled 5-4 that any restrictions on corporations’ and labor unions’ ability to share information infringed on their right to free speech. The five in the majority all were Republicans; the dissenters were the three Democrats and Justice John Paul Stevens, a Republican who almost always voted with the Democrats.

According to the National Archives and Records Administration, congressmen and senators have two ways to introduce a constitutional amendment. In the first instance, a legislator from either chamber can introduce an amendment that must then win approval by a two-thirds majority in both the House and the Senate. In the second option, two thirds of all state legislative bodies must call for a constitutional convention—which has never occurred. Either way, the president has no role in the process.

Once successfully introduced, the amendment goes to all 50 states for approval. If at least three-fourths of all states, 38, approve the amendment, it becomes part of the U.S. Constitution.

Schiff’s amendment, House Resolution 57, would allow federal and state governments to pass laws restricting campaign contributions and establish a public election funding system.

“Nothing in this Constitution shall be construed to forbid Congress or the States from imposing reasonable content-neutral limitations on private campaign contributions or independent election expenditures, or from enacting systems of public campaign financing, including those designed to restrict the influence of private wealth by offsetting campaign spending or independent expenditures with increased public funding,” the resolution states.

As of this writing, the amendment has 15 co-sponsors, including Rep. Jan Schakowsky (D-IL- 9), whose district contains parts of the North Side and northern suburbs. Undoing the Citizens United decision through a constitutional amendment forms part of several reforms she wants to make “to restore democratic principles in our elections,” according to Schakowsky.

Schakowsky outraged

“Like many Americans, I was outraged to read the Supreme Court’s decision in F.E.C. v. Citizens United,” Schakowsky noted in a statement. “Corporations are not people, and they do not deserve the same Constitutional protections as American citizens. I do not believe corporations should be able to spend unlimited amounts of money to influence our elections. One solution is to amend the United States Constitution to overturn Citizens United and clearly state that corporations are not people and that spending money is not the same thing as speech. Those distinctions are necessary to avoid corruption, by limiting the role money plays in elections.”

Earlier this year, Representatives Theodore Deutch (D-FL-22), James McGovern (D-MA-2), Jamie Raskin (D-MD-8), and John Katko (R-NY-24) introduced their own proposal that goes even further. Besides giving federal and state governments power to limit campaign spending, it specifically says those laws “may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.”

That proposal currently has 131 sponsors, including eight out of 18 Illinois representatives: Schakowsky and Representatives Jesus “Chuy” Garcia (D-4), Mike Quigley (D-5), Sean Casten (D-6), Danny Davis (D-7), Brad Schneider (D-10), Bill Foster (D-11), and Cheri Bustos (D-17).

A proposed amendment by Move to Amend, a Sacramento, CA, based coalition of political and social advocacy organizations and labor unions, is pushing for the most significant change, however. As Shelly Williams, the coalition’s administrative coordinator, explained, they see the Citizens United decision as just the latest in the Supreme Court’s wrong-headed decisions that granted corporations the same rights as human beings.

“The Constitution is for individual humans, which is common sense,” she said. “When the Constitution was written, there was nothing about corporations.”

Those decisions allowed corporations to gain outsized political influence in a way that affected people’s welfare and rights, Williams explained. She pointed to campaigns against the proposed Medicare for All health care reform and proposals to use private prisons to detain asylum seekers that entered United States as examples.

As a result, Section 1 of the coalition’s proposed amendment specifies that “the rights protected by the Constitution of the United States are the rights of natural persons only” and “artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.”

Section 2 hews closer to other amendment proposals but carries stronger language. As Williams noted, both Schiff’s and Deutch’s proposals say that governments “may” regulate campaign spending, while Move to Amend’s proposal says “shall.”

That is why she believes Schiff’s proposal doesn’t go far enough.

“An amendment opportunity is very rare,” she said. “It happens maybe once in a lifetime. If we don’t take the opportunity to get to the root of the problem, we’ve got corporate rule that gets so out of hand.”

Rep. Jayapal Pramila (D-WA-7) introduced the amendment in the current Congressional session on Feb. 22. It currently has 54 co-sponsors, including Schakowsky, Davis, and Garcia.

Lawmakers have referred all three amendments to the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, and have taken no action on them as of this writing.

The Institute for Free Speech, an Alexandria, VA, based nonprofit, has been advocating against regulations on campaign spending and restrictions on “political speech.” Most notably, it offered legal representation for the SpeechNow nonprofit lawsuit against the Federal Election Commission over contribution limits. The Supreme Court ruled in the former’s favor, which allowed corporations, nonprofits, and labor unions to make unlimited contributions to large-scale political action committees that became known as Super PACs.

Luke Wachob, the institute’s director of communications, said his organization sees the matter as a free speech issue.

“Our democracy works best when voters are free to speak, hear from others, and decide for themselves which candidates to support,’ he said. “Letting the government decide who can speak, and how much, is a dangerous path.”

Move to Amend is pushing for the most significant changes, including campaign finance reform and an end to corporate personhood as a legal concept.

SEIU involved locally

Service Employees International Union (SEIU) Local 73 represents public employees working for municipalities, county governments, public and private universities, and school districts throughout Illinois and Northwest Indiana. The union is no stranger to political advocacy, and it has its own PAC, the SEIU Local 73 Bi-Partisan PAC.

According to its most recent quarterly report filed with the Illinois Board of Elections, it spent $71,207.23 in the run-up to Chicago’s April 2 runoff election, supporting members and volunteers working on Toni Preckwinkle’s mayoral campaign and several aldermen’s election campaigns, including now-alderman Byron Sigcho-Lopez (25th). During the previous quarter, it donated $190,650 to various municipal election candidates in Chicago and the suburbs. By the end of the quarter, the PAC had $60,546.66.

While the union makes campaign contributions, it definitely does not see Citizens United as a benefit. In a statement to Gazette Chicago, SEIU Local 73 president Dian Palmer, who also serves as the PAC’s chairperson, said her union opposes the Citizens United decision because it helped “corporate special interests” undermine the government agencies their members work for by pushing for “cutting taxes on the wealthy and corporations” and “then attack the government for not being able to provide quality services and seek to privatize those services.

“These forces are attempting to dismantle our democracy and buy political influence by pouring millions of dollars of untraceable money into our elections,” Palmer stated. “Their efforts to undermine our democracy are epitomized by Citizens United, which gives corporations the same rights as human beings in our democracy. The Citizens United decision embodies the dangerous idea that capital is the equal of humanity.”

She added that the union supported reversing Citizens United as part of a broader package of reforms members believe will help ensure more citizens would have a voice in the political process.

“We support efforts to create a fair campaign finance system, including reversing the Citizens United Supreme Court decision,” Palmer said.

“We will fight to restore and expand voting rights. SEIU will work to address redistricting that has served to undermine democracy and equitable representation for all people living in the United States,” Palmer added.

More on the Institute for Free Speech can be found at www.ifs.org. Move to Amend’s website is movetoamend.org. For more on Schakowsky, log on to Schakowsky.house.gov. Schiff’s website is adamschiff.com. For the SEIU, log on to seiu73.org.