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Wednesday, July 27, 2016

Denniston on Whether Citizens United Will be Overturned

Via How Appealing, I learned of this post by Lyle Denniston at the Constitution Daily blog for the Constitution Center. Denniston notes several statements in which Hillary Clinton, Bernie Sanders, and others forecast that the Supreme Court case of Citizens United v. Federal Election Commission will be overturned. In particular, Hillary Clinton stated the following on July 18, 2016:
“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.”
For a bit of background on Citizens United, Denniston writes:

In that ruling, the court voted 5-to-4 in declaring that the First Amendment protects the right of corporations and labor unions to spend unlimited amounts of their money to try to influence election outcomes. Many political analysts believe that this ruling brought about the rise of “super PACs,” with a dominant financial influence in national elections. (It is an irony of history that the Citizens United case arose because of the money spent to create a highly critical campaign movie against Hillary Clinton, who now is one of the strongest critics of the Citizens United decision.)

Denniston notes that a constitutional amendment is unlikely, given the difficult process of obtaining the widespread support necessary to pass an amendment. Denniston also argues that changing the makeup of the Supreme Court is an unlikely means to overrule the decision:
Hillary Clinton is now proposing two different ways to overturn that ruling. Often during speeches last year, she spoke about selecting Supreme Court Justices who, she hoped, could be counted on to overrule that decision. She has continued to press that approach. That has always seemed like quite a long shot. Even the death in February of one of the Justices in the majority, in that case, Antonin Scalia, may not have changed the judicial calculus – unless a newly elected Democrat chooses a replacement for Scalia who would help make a majority to overrule that decision. Candidate Clinton recently added a strong encouragement of lawyers to keep trying to file lawsuits to test whether the court might be persuaded on this point.
While I agree with Denniston's conclusion that a constitutional amendment is unlikely, I do not think that Clinton's proposal to change the makeup of the Supreme Court is a "long shot." Justice Scalia's death may result in a significant shift in the Court's ideological balance should Hillary Clinton win the 2016 election, and this shift may well lead to a reversal, or at least a narrowing, of the Citizens United decision.

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