Amendment To Reverse Citizen’s United Advances To Senate Floor

A Senate committee approved a constitutional amendment to reverse Citizens United

On Thursday, the Senate Judiciary Committee approved a resolution to amend the US Constitution to allow greater regulation of political spending, on a 10-8 party line vote. This clears the way for a vote by the full Senate later this year.

The proposal, sponsored by Senator Tom Udall (D-NM), is intended to reverse recent Supreme Court rulings that have deregulated the campaign finance system, such as Citizens United and McCutcheon v. FEC. It states that both Congress and the states would “have power to regulate the raising and spending of money” on elections. Specifically, it would allow limits on outside spending in support of candidates, which the Court has struck down. You can read the amendment’s full text here.

Republicans on the committee were harshly critical of the measure, and emphasized that it was the first time the Bill of Rights would ever have been amended. Senator John Cornyn (R-TX) called the proposal “surreal and hysteric,” and Ted Cruz (R-TX) called it “a proposal that would allow Congress to ban books, to ban movies, and to ban the NAACP.”

But Senator Chuck Schumer (D-NY) scoffed at his analysis, saying, “Since we banned child pornography — which I imagine my colleagues support — a limitation on the First Amendment, has free speech been hampered in any way? Absolutely not.” And he said the measure would limit spending from both liberal and conservative funders: “The Soroses and the Steyers will be just as banned as the Kochs and the others. And they should be.”

It’s the first constitutional amendment approved by a Senate committee in recent years. In 2004, when Republicans controlled the chamber, they pushed a constitutional amendment that would ban gay marriage nationwide — but could not win committee approval for it, and sent it directly to the Senate floor instead (where it fell far short of passage).

But the amendment’s prospects look dim. If every Senate Democrat supports the amendment — so far, 8 haven’t signed on — it would still need 12 GOP votes to reach the 67 needed for passage. And so far, Republicans have been unanimously opposed. Furthermore, the measure has no support in the House. The approval of both chambers is needed to send the proposal to the states. 38 states would then need to ratify it to put it into effect.

So instead, some activists have focused on amending the Constitution through another route — by getting state legislatures to call for a Constitutional convention. Two legislatures have done this so far. For more information about how this process works, click here.

What is the Citizens United decision?

The Supreme Court’s ruling in Citizens United v. FEC essentially held that spending money on election ads is a form of free speech, and thus there’s little Congress can do to limit it. In contrast, direct donations to political candidates could remain regulated and restricted. This created an incentive for moneyed groups and individuals to affect elections by spending on their own election ads rather than donating to candidates or parties.

At issue in Citizens United v. FEC was an existing law that restricted corporate and union spending on election season ads. They could not pay for ads with their general funds, but instead had to set up PACs that would be regulated by the FEC, and spend through those. In Citizens United v. FEC, the court ruled that this restriction was unconstitutional. The court held that corporations and unions have a First Amendment right to freedom of speech, and the prohibition on spending their own money on elections was effectively muzzling them.

The court did clarify that corporations are still banned from donating directly to candidates — because when money is handed over to politicians, that theoretically presents a greater danger of corruption. The court also stated that Congress could still require disclosure of outside groups’ election spending. But no limits on the amount of outside spending are permissible.