Federal Judiciary

Challenges to Citizens United begin

By Akin Gump Supreme Court Practice Group

Only three times in the Nation’s history have Supreme Court decisions so aroused opposition that they were directly overruled by amendments to the Constitution.  It is thus rare;  it obviously takes a perceived shock to the governmental system before Article V’s revision machinery is pursued to completion.  The 11th Amendment (shoring up states’ legal immunity), the 16th Amendment (authorizing a federal income tax), and the 26th Amendment (assuring 18-year-olds the right to vote) — each overcame a Supreme Court decision.  (Arguably, a fourth, the 24th, outlawing the poll tax, was provoked by the Supreme Court .)

Will it happen again?  Within hours after the current Court on Wednesday decided that the First Amendment protects unchecked spending by corporations and labor unions to influence elections to the White House and Congress, advocacy groups Public Citizens and People for the American Way called for a constitutional amendment to undo the ruling.  A recently formed group, the Campaign to Legalize Democracy, took up the call, and went online at Move to Amend to circulate a petition to gather support for the idea; by the next morning, it claimed more than 21,000 signatures.

It is too soon to evaluate whether this movement, or the alternative idea to write new federal laws to get  around the Citizens United ruling, will succeed.  But the blog will be monitoring the effort, and invites those working on the idea to share the language of constitutional amendments or legislative revisions.  Below the jump are some early drafts of a constitutional amendment.

Reclaim Democracy.org:

Section 1: The U.S. Constitution protects only the rights of living human beings.

Section 2: Corporations and other institutions granted the privilege to exist shall be subordinate to any and all laws enacted by citizens and their elected governments.

Section 3: Corporations and other for-profit institutions are prohibited from attempting to influence the outcome of elections, legislation or government policy through the use of aggregate resources or by rewarding or repaying employees or directors to exert such influence.

Section 4: Congress shall have power to implement this article by appropriate legislation.

Reclaim Democracy also has drafted a campaign finance amendment, with these operative sections:

The  Congress shall have the power to set limits on contributions and expenditures made to influence the outcome of any federal election.

Each state shall have the power to set limits on contributions and expenditures made to influence the outcome of elections in that state.

The power of each state to set limits on contributions and expenditures shall extend to all elections in that state, including initiative and referendum elections, as well as the power to lower any federal limits for the election of members of Congress to represent the people of that state.

From a Hofstra Law School faculty member:

For the purposes of the Constitution, corporations are public, not private. The rights enumerated in the Bill of Rights are the rights of human beings, not corporations.

From Ultimate Civics, a project of Earth Island Institute:

This amendment affirms that constitutional rights extend only to human persons.  Corporations, partnerships, and other organization entities are not human persons and, therefore, are not entitled to constitutional protections.

Full post as published by SCOTUSBLOG on January 25, 2010 (boomark / email).