When liberals and progressives cite former Supreme Court Justice Anthony Kennedy’s best and worst rulings of the Barack Obama era, they typically praise his support for same-sex marriage in Obergefell v. Hodges while slamming him for his support for unlimited corporate donations in Citizens United v. the Federal Election Commission. The U.S. Supreme Court obviously isn’t going to be overturning Citizens United anytime soon given its swing to the right, but a group of 50 legal experts have another idea for ending that decision: a 28th Amendment to the U.S. Constitution.
The legal experts, according to the Law & Crime website, have signed a joint letter they plan to release on Constitution Day that calls for a constitutional amendment ending Citizens United. Those who have signed the letter range from former Federal Election Commission Chairman Trevor Potter to Zephyr Teachout (a law professor at Fordham University in New York City) to two professors at the Harvard Law School: Lawrence Lessig and Laurence Tribe.
The letter states, “As attorneys, law professors and former judges with a wide variety of political beliefs and affiliations, we are convinced that our nation’s current election spending framework is a root cause of dysfunction in our political system and requires fundamental reform.”
Jeff Clements, an anti-Citizens United activist, discussed the campaign to end that hated decision with Law & Crime. Clements is the president of American Promise, a nonprofit that has been fighting to end Citizens United — which struck down parts of the Bipartisan Campaign Reform Act of 2002, a.k.a. the McCain-Feingold Act, and equated large campaign donations with free speech.
Clements told Law & Crime, “The Supreme Court has really made a mess of the First Amendment with the theory that money — unlimited money — is an expression of free speech. What this amendment would do is put us back on a strong foundation of free speech for all Americans, not just those with unlimited wealth.”
Clements doesn’t view Citizens United as a victory for free speech but rather, as suppression of free speech. And he said of Citizens United opponents, “We are advocates of free speech and the First Amendment. The free speech argument is actually on our side. Most Americans have less free speech now, when money dominates the system. When money is the dominant currency of who can run for office and what candidates are taken seriously — and when the money is coming from fewer and fewer sources — we have fewer voices. Most Americans cannot participate.”
According to Clements, “What we’re trying to show is that the Constitution wasn’t finished 243 years ago.”
In Congress, a bill calling for a 28th Amendment to overturn Citizens United has been introduced by Democrat Ted Deutch and Republican John Katko in the House of Representatives and by Democrat Tom Udall in the Senate.