Should Citizens United Be Overturned? (H. Joint Res. 48)

What is H. Joint Res. 48?

(Updated July 26, 2020)

This joint resolution would propose a constitutional amendment stating that: 1) the rights protected by the Constitution are the rights of natural persons only; 2) artificial entities (such as corporations, limited liability companies, and other entities established by the laws of any state, the United States, or any foreign state) have no rights under the Constitution and are subject to regulation by the people, through federal, state, or local law; and 3) artificial entities’ privileges shall not be construed to be inherent or inalienable.

This amendment would also require federal, state, and local government to: 1) regulate, limit, or prohibit contributions and expenditures, including a candidate's own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process and that no person gains, as a result of that person's money, substantially more access or ability to influence the election of any candidate for public office or any ballot measure; and 2) require that any permissible contributions and expenditures be publicly disclosed. The judiciary is prohibited from construing the spending of money to influence elections to be speech under the First Amendment.

As a proposed constitutional amendment, this resolution would have to pass both chambers of Congress with a two-thirds vote and be ratified by three-fourths of the state legislatures (38 states) to amend the Constitution and take effect.

Argument in favor

The Citizens United decision allowed an influx of corporate money into elections, making politics a game in which whoever has the most cash wins and making public policy beholden to corporate interests. Overturning Citizens United will lower the cost of elections and restore political power to voters.

Argument opposed

Citizens United was a good decision, as political contributions are essentially political expression that’s protected by the First Amendment. The route to reform campaign finance is not to overturn Citizens United, but rather to change people’s minds and mobilize them to vote against big money.

Impact

Voters; corporate political donors; Congress; the Supreme Court; and the U.S. Constitution.

Cost of H. Joint Res. 48

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Rick Nolan (D-MN) introduced this joint resolution to call for a constitutional amendment to overturn the U.S. Supreme Court’s 2010 Citizens United decision, which granted corporations and other legal entities the right of free speech under the First Amendment and opened federal election campaigns to the free flow of billions of unrestricted and unreported dollars:

“It’s time to establish once and for all that corporations are not people, money is not free speech, and our elections and public policy-making process are not for sale to the highest corporate bidders. It’s time to take the molding and shaping of public policy out of corporate boardrooms, away from corporate lobbyists, and give it back to the American people. We must divert Congress’s focus away from the corporate interests of millionaires and billionaires and return it back to creating good-paying jobs and rebuilding our middle class.”

In a letter to his Congressional colleagues, Rep. Nolan added that the legal doctrines of “money equals political speech” and “corporate constitutional rights” were both created by Supreme Court decisions, and amount to inappropriate judicial activism:

“The legal doctrines of ‘money equals political speech’ and ‘corporate constitutional rights’ were both created by Supreme Court decisions—examples of judicial activism. The question of how to best protect the integrity of elections and the proper role of the corporation in society are political questions, and according to our system of government should be addressed by elected representatives, at the local, state and federal level. When the Court illegitimately turns a political question into a Constitutional question, they transform ‘We the People’ from active, sovereign participants into mere spectators… amend[ing] the US Constitution to make it clear that only natural persons possess inherent inalienable constitutional rights and that the expenditure of money is not protected speech… has overwhelming support of the American people.”

Michael Kinsley, writing in Vanity Fair, argues that Citizens United shouldn’t be overturned, as it was a good decision by the Court:

“[Y]ou can't easily amend your way out of the problems raised by Citizens United, as you can the problems raised by, say, the Second Amendment: Citizens United, unlike the Second Amendment, is not an out-of-date decision that needs to be rehabbed. It was a good decision. It was correctly decided. It is not in there by historical accident. It should not be reversed. The proper way to ‘fix ’the problem that many people see is to change people's minds, not to change the Constitution, which would require inserting language into the First Amendment that directly violates First Amendment values. First Amendment values say that if you want a more ‘level playing field’ you must raise the low ground. You can't level the playing field by lowering the high ground. And the whole problem might be solved by Stein's Law (named for the late economist Herb Stein): ‘If something cannot go on forever, it will stop.’ If enough people are enraged enough by the imbalance of political power caused by money, they will vote against big money, which will turn it into a negative.”

This legislation has been referred to the Subcommittee on the Constitution and Civil Justice with the support of 65 cosponsors, including 64 Democrats and one Republican. It’s also supported by the Move to Amend coalition, of which Rep. Nolan is a member.

Of Note: The Move to Amend coalition was formed in 2009 in preparation for the Supreme Court’s 2010 Citizens United vs. Federal Election Commission decision. It now has over 380,000 people and hundreds of organizations under its umbrella, and has helped pass over 600 resolutions in municipalities and local governments across the U.S. supporting what it terms the “We the People” Amendment. Sixteen state legislatures have passed similar resolutions.

Media:

• Sponsoring Rep. Rick Nolan (D-MN) Press Release
  
• Vanity Fair (Opposed)