Could Hillary Clinton Really Overturn Citizens United?

 

Hillary Clinton and the Democratic Party platform have pledged to overturn the Supreme Court’s controversial Citizens United decision. Assuming Clinton is elected in November, overturning the case would be a significant challenge.The Call to Overturn Citizen’s United

In Citizen’s United v. Federal Election Committee, the U.S. Supreme Court held that the First Amendment does not allow political speech restrictions simply based on a speaker’s corporate identity.  The decision is credited with fostering the rise of the “Super PAC” and allowing corporate interests to have greater influence over the political process.

Overturning the “disastrous” Citizens United decision is one of the platforms adopted at the 2016 Democratic National Convention. Clinton has also pledged to introduce a Constitutional amendment to reverse the Court’s holding. In a July 18, 2016 speech, she said:

Today I’m announcing that in my first 30 days as president I will propose a Constitutional Amendment to overturn Citizens United and give the American people, all of us, the chance to reclaim our democracy. I will also appoint Supreme Court justices who understand that this decision was a disaster for our democracy…. I hope some of the brilliant minds in this room will seek out cases to challenge Citizens United in the courts, because I know I can’t do this alone.

Amending the U.S. Constitution

By design, it is very difficult to amend the Constitution. Pursuant to Article V, two-thirds of the members of Congress must vote to propose an amendment. Alternatively, two-thirds of the state may call for a Constitutional Convention. In either case, three-fourths of the states must approve the change. As described by James Madison, the Framers intended the provision to “guard equally against that extreme facility which would render the Constitution too mutable and that extreme difficulty which might perpetuate its discovered faults.”

To date, the Constitution has been amended 27 times, most famously with the passage of the Bill of Rights. The most recent amendment passed in 1992 when the Constitution was changed to limit the ability of Congress to raise its own salary.

The Constitutional amendment process has been used seven time to overrule Supreme Court decisions. In 1913, the states ratified a constitutional amendment to authorize a permanent federal income tax. The Sixteenth Amendment overruled the Supreme Court’s decision in Pollock v. Farmers Loan & Trust Co. The Nineteenth Amendment, which guaranteed women the right to vote, was proposed in response to the Court’s decision in Minor v. Happersett, which held that denying the right to vote a valid citizen was not an infringement of any constitutional right.

The only other avenue for overturning Citizens United is to appoint Supreme Court justices who believe that the decision is bad law. The Court does overturn itself, but it is rare.  In its entire history the court has not reversed itself much more than 100 times.

In legalizing same-sex marriage last year, the Court reversed a Fourteenth Amendment precedent established in 1972. Another famous example is Brown v. Board of Education. In 1954, 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.

So while pledging to overturn Citizen’s United is guaranteed to fire up the liberal base, it a promise that Clinton will likely have a hard time upholding.

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 and Law blogs.