Could a Constitutional Amendment Overturn Citizens United?

A constitutional amendment to overturn Citizens United and abolish the “super pac” has begun.  The super pac can accept unlimited personal and corporate campaign contributions and accounted for almost a Billion dollars that was spent in this years elections.

Voters in Montana and Colorado have voiced their displeasure with the Supreme Court’s decision in Citizens United v. Federal Election Commission. The decision gave rise to the “Super PAC” after holding that the First Amendment does not allow political speech restrictions simply based on a speaker’s corporate identity. 

Montana’s Initiative 166 passed overwhelmingly with 75% of the vote. It states that “the people of Montana regard money as property, not speech.” It further adds that Montanans “intend that there should be a level playing field in campaign spending that allows all individuals, regardless of wealth, to express their views to one another and their government.” It directs the state congressional delegation to propose an amendment establishing that “corporations are not human beings with constitutional rights.

When the Supreme Court issues a decision, it must be followed in every state. Under the doctrine of stare decisis, lower courts are obligated to follow the precedent of the Supreme Court, regardless of whether they believe the justices got the decision right. Supreme Court justices are also bound to honor decisions issued by their predecessors, although the doctrine is arguably a bit flexible in this case.

A decision of the Supreme Court is considered the law of the land and is not easily overturned.  There are only two ways to do it–either wait for the Supreme Court to overturn its own decision, or amend the United States Constitution. 

While there are ways to overturn a Supreme Court decision, it is certainly not easy. One method is to wait for the Supreme Court to reconsider the issue and essentially overrule itself. Brown v. Board of Education is a classic example. The Court overruled the precedent established in 1896 in Plessy v. Ferguson, which held that segregated public facilities were constitutional so long as the black and white facilities were equal. The Court may again reverse course this term when it issues its decision on affirmative action. However, these cases are few and far between, and a significant amount of time generally passes between decisions.

The other option is to amend the Constitution, which is also an arduous task. It requires two-thirds of each chamber of Congress and three-fourths of the states must approve the change. While this may appear daunting, twenty-four U.S. senators and 75 U.S. representatives have introduced or co-sponsored legislation to overturn Citizens United. In addition, eleven states have formally called for an amendment, according to The Reporter.

Critics of Citizens United clearly still have work to do. However, history proves that it can be done. Four of the twenty-seven amendments to the Constitution, including the Fourteenth Amendment, have overturned Supreme Court decision.

 

Donald Scarinci is a managing partner at Lyndhurst, N.J.-based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government & Law blogs.

 

"I don't think what he's doing tonight, the method by which he's doing it helps to build a trustful relationship."
—Gov. Chris Christie reacting to President Barack Obama's speech on immigration reform.