Is there any legislation short of a constitutional amendment that could end super PACs without running afoul with the Citizens United decision?
Thanks,
Rob
Color me dubious. Short of an amendment, the best way would be to impeach a couple of justices and relitigate the case. It was based on two things: 1st amendment and money = speech.
The closest I can think of are limits on PAC spending similar to any other political speech. For example, if I am limited to $500 per candidate then PACs and organizations should also be limited to the same amount.
I think it is important to recognize that corporations do have a right to political speech. Certainly Microsoft or Disney should have a voice in the politics covering IP laws. The issue really is that Citizens United along with the lack of control on PAC spending gives them a disproportionate political voice.
There is the nuclear option: Jurisdiction stripping.
Congress could strip all federal courts of jurisdiction to hear challenges to campaign finance laws and then pass a new set of campaign finance laws.
Which, assuming it’s constitutional, would just mean that such laws would be challenged in the state courts, resulting in 50 different interpretations on their constitutionality.
Can you challenge a Federal law in state court? Wouldn’t the supremacy clause prevent that?
I don’t know that this is a necessary outcome. The law surrounding jurisdiction stripping is pretty unclear (IMO), but Congress could theoretically provide an alternate adjudication forum, such as a non-Article III court or a bureaucratic hearing. That’s assuming that they really do have the power to strip jurisdiction for this particular case.
Congress can’t strip SCOTUS’ jurisdiction over cases that have already been decided, though.
Do you really think that either Party would be in favor of ending Super PACs?
Do you think that one Party benefits more from Super PACs than the other?
Both parties raise millions of dollars this way and without the support of at least one major Party, any legislation would go no where.
Hillary has only raised $15 million so far in Super PAC money because she is not the strongest of candidates with all her “problems”. Obama raised $80 million in 2012 with Super PAC support and there are many millions of dollars out there for the Democratic nominee as soon as Hillary drops out.
No way Democrats would be in favor of passing up this kind of money even if it meant stopping Republicans from raising money this way.
The Constitution lists all these rights that every person has, but where in the Constitution does it define a corporation as a person? To the best of my knowledge, it was legislation of Congress that created corporations as persons (amirite?) and thus, Congress could pass new legislation rescinding or re-defining or clarifying that.
Can the Teeming Constitutional Scholars here comment on this?
ETA:
Hypothetically, of course. In the Real World As We Know It, of course, there’s this:
The central issue isn’t corporations being legally defined as people. The real issue is money being legally defined as speech.
But I don’t see any way short of a Constitutional amendment to reverse this practice in the near future. In theory, Congress could attempt to craft a law that limits campaign contributions and stays within current SCOTUS decisions. But as long as a majority on the court support the general principle, they’re going to be able to overturn any new law that’s enacted.
Also in theory, turnover may produce a court that will choose to reverse these decisions. But we’re currently in a vicious circle. Judges on the Supreme Court agree that money’s entitled to have political power. That political power influences who gets elected. And the people who get elected pick who sits on the court. It’s hard to see a point where change will be initiated.
But essentially the decision was about free speech. All the stripping in the world (or the USA) can’t remove SCOTUS ultimate jurisdiction to hear constitutional rights challenges - i.e. restricting free speech. Correct?
If you limit any “person” from spending money to speak their position, especially during a vital time like an election, you are restricting their free speech.
Article III. Section 2.
Read that carefully, in all cases (other than those involving Ambassadors, public Ministers and Consuls, and those in which a State shall be a Party), Congress can make Exceptions and Regulations. There is nothing in the Constitution giving the SCOTUS “ultimate jurisdiction to hear constitutional rights challenges.” Any such challenge is just another case “in Law and Equity, arising under this Constitution,” and the Constitution gives Congress the power to make Exceptions and Regulations.
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Why? Disney has the right to hire lobbyists to explain its concerns to Congress; we’re talking about campaign financing. Since you already accept the notion that there be per-individual limits on such spending, why does any “right” apply to corporations? The idea that corporations are “juridicial persons” is just a didactic notion that has been taken much too far.
The human stockholders and employees of Disney will still have the same political rights other human citizens have. Pretending that the First Amendment applies to inanimate constructions was a sad and despicable mistake.
Should corporations also be allowed to vote?? With votes proportional to market cap???
Until rationalists have control of both White House and Senate no new Justice to the left of Attila the Hun will be appointed to the Supreme Court. (We could hope instead for vacancies and a 4-3 rationalist majority. Second Ameendment remedies, anyone?)
Keep in mind that corporations are wholly prohibited from making contributions to candidates in federal elections, and Citizens United did not change that. That case only related to independent expenditures.
That’s ridiculous. Ted Cruz has received double the Super PAC money that Clinton has. You can’t tell me he doesn’t have any “problems.”
Conservative-aligned Super PACs spent double the money that liberal ones did in the 2012 election.
It may be true that Democrats don’t want to get rid of the system because (essentially) they are corrupt and get lots of money, even if they get less than Republicans. But it’s certainly not true that the share is even.
Only if you define money as a form of speech, which is neither an obvious or historical definition. Money was not legally defined as speech until 1976.
The very fact that so many people now accept as a given the argument that money is speech shows the power money has to change the way people think.
To veer off and answer another question raised earlier, when I studied the civil war, the teacher simply said that it was widely understood that one of the intended effects of the civil rights amendments was to include corporations as “persons”. That interpretation doesn’t seem obvious to me, but apparently it was at the time.
When I was a student, neither corporations nor labor unions were allowed to contribute to campaigns. The argument was that to allow that would be to coerce people (shareholders and union members) into support they might disagree with. Of course, we had lobbyists but they were much more restrained. Now it’s all about money.
Jurisdiction stripping could work. Congress could pass a new law that differed by one word from the previous one and the executive start enforcing it. But before congress would do that, they would go along with appointing better judges, which isn’t in the cards.
In an era when money is required to effectively disseminate your message, money is speech. How could it be otherwise? Limiting money spent is limiting one’s ability to effectively speak your message, especially if media advertising is how the message is sent. Similarly, giving a person money to spread a message you agree with is you speaking through your “fellow traveller”. (Similarly anonymity is a component of free speech, since in the real world people who speak up could be subject to intimidation.)
The missing piece is a requirement for the Supreme Court to decide that there can be effective and reasonable (!!) limits on speech, including money. We have noise bylaws, you can’t troll neighbourhoods in your loudspeaker truck at 3AM. Same should apply to money. Similarly, you should not be entitled to flood media with your message simply because you have a lot of money.
GQ, y’all.