2010 was the first election in which we witnessed the true effect of the Supreme Court’s Citizens United v. Federal Election Commission decision. On the night before the election, Congresswoman Donna Edwards said, “You can hear it on the radio ads and you can see it on the television, the independent spending that’s going on there that’s completely anonymous and, I think, it’s been very destructive.”
To that end, she introduced this week’s episode, H. J. Res 78, an amendment to overturn the Citizens United decision.
90 Second Summaries: Season 2, Episode 24
H. J. Res. 78: Constitutional Amendment to Overturn Citizens United
Sponsor: Rep. Donna Edwards (D-MD4). Key cosponsor: Rep. John Conyers (D-MI14)
Click here to download this summary (pdf)
Cosponsors: 15 (15 Democrats, 0 Republicans). Full list at http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HJ00078:@@@P
Status: Referred to Judiciary Subcommittee on the Constitution. Virtually no chance of moving or even receiving a hearing.
Senate Companion: None. Max Baucus (D-MT) announced plans in January to introduce such an amendment, but never did so.
Purpose: In January 2010, the United States Supreme Court struck down the longstanding ban on direct political spending by corporations as unconstitutional. The now-infamous Citizens United v. FEC decision unleashed a torrent of corporate spending in the 2010 election cycle, heavily tilted towards Republicans and much of it anonymous, confirming the worst fears of the decision’s detractors.
In response, Democrats have proposed various measures to counteract the antidemocratic effects of unlimited and undisclosed corporate spending. While leadership chose to advance a more modest response and demand transparency through the DISCLOSE Act, some favored a constitutional amendment to repeal the decision entirely. The latter approach was captured in Rep. Donna Edwards’ proposal, reintroduced in the 112th Congress as H.J. Res. 78.
Summary: H. J. Res. 78, which would become the 28th Amendment to the U.S. Constitution if enacted, overturns Citizens United in the following manner:
• Clarifies the authority of Congress to regulate and restrict the political activity of corporations of any sort, including but not limited to contributions in support of or in opposition to a candidate for public office;
• States that the measure does not affect freedom of the press, most notably for newspapers to endorse candidates;
• Does NOT challenge the concept of “corporate personhood” that allows corporates various rights and constitutional protections;
• Does NOT challenge Buckley v. Valeo, the 1976 decision that ruled campaign contributions to be a form of constitutionally protected free speech.
Note: As with any constitutional amendment, this proposal requires 2/3 support in both houses of Congress (290 in the House, 67 in the Senate), and ratification by 3/4 of the states (38) in order to be enacted. Seeing that Republicans disproportionately benefit from outside corporate spending and control far more than the 13 states necessary to block an amendment, enactment is virtually impossible barring a major shift in the political climate.
CBO Score: None provided. Would not affect federal or state spending in itself, although it may open the door for future regulations requiring enforcement.
Supporters: Democrats and allied organizations, good government organizations
• While some would like to go further and directly negate the concept of corporate personhood itself, supporters generally feel this measure is necessary to prevent corporate-aligned interests from buying elections outright and thus undermining the fabric of democracy.
Opponents: Republicans and allied organizations
• Opponents of this measure (and therefore supporters of the Citizens United decision) claim corporate spending on elections is rightfully protected by the First Amendment, as intended by the Founding Fathers. They see efforts to remove that protection as restricting freedom.
Full bill text: http://www.govtrack.us/congress/billtext.xpd?bill=hj112-78
Official CRS summary: http://www.govtrack.us/congress/bill.xpd?bill=hj112-78&tab=summary
Rep. Edwards press release: http://donnaedwards.house.gov/index.cfm?sectionid=24&parentid=23§iontree=23,24&itemid=462
The Hill article on the bill: http://thehill.com/homenews/house/182729-house-dems-push-bill-to-overturn-citizens-united-ruling
Reason.com article mocking Citizens United opposition: http://reason.com/archives/2010/11/09/you-are-now-free-to-speak-abou/