In “You Are Now Free to Speak About Politics,” reason‘s December 2010 cover story, I laid out the history behind Citizens United v. FEC, the Supreme Court decision protecting the right of corporations to spend money to influence the political debate, and defended its logic against the left’s apocalyptic rhetoric. “The over-the-top reactions to Citizens United reflect a view of corporations as giant, soulless automatons that are…bound to wreak havoc if let loose in the halls of political power,” I wrote. “That view obscures the fact that corporations, no matter how large or profit-driven, are by definition associations of individuals who have joined together for a common purpose.”
Nearly six years later, the Democratic Party’s top candidates for president, Bernie Sanders and Hillary Clinton, have both made it clear they’re committed to reversing that decision—but neither of them appears to understand how that would work.
In January Sanders declared on Twitter that “any Supreme Court candidate of mine will make overturning Citizens United one of their first decisions.” The Vermont senator seems to think a single justice has the power to reverse any precedent he dislikes, even without waiting for an appropriate case to come along.
Clinton has a firmer grasp of the legal mechanics that would be involved. “I’ll appoint Supreme Court justices who recognize that Citizens United is bad for America,” she has said, and “if necessary, I’ll fight for a constitutional amendment that overturns it.” The former secretary of state thus implicitly concedes the precedent might survive even if she gets to appoint the late Justice Antonin Scalia’s replacement. The Court’s oldest justice, Ruth Bader Ginsburg, was on the losing side in that decision, and there is no guarantee that Anthony Kennedy, who voted with the majority, would retire while Clinton had the power to pick his successor. Although a constitutional amendment is an even longer shot, it is at least technically possible.
Her substantive argument, however, misses the mark. Clinton complains that the spending allowed by Citizens United is “drowning out the voices of ordinary Americans and distorting our democracy,” and suggests that campaign finance regulations serve the constitutionally dubious goal of maintaining “balance” in political debates by making sure everyone gets a fair hearing and no one talks too much. That rationale, unlike the legitimate goal of preventing corruption, has never been fully embraced by the Court.