Three years ago, in Citizens United vs. Federal Election Commission, the Supreme Court ruled that corporations and unions have a 1st Amendment right to spend their money to influence voters. The court struck down restrictions on independent expenditures, saying they were a form of protected political speech and that prohibiting them was censorship.
The decision didn't go as far as some of its detractors imagine. For example, it didn't eliminate laws prohibiting corporations from contributing directly to political campaigns, nor did it strike down restrictions on political spending by foreign corporations. Contrary to popular belief, Citizens United didn't authorize rich people to spend unlimited amounts of their own money on political advertising. They already had that right under a 1976 Supreme Court decision.
Still, as this editorial page said at the time, the decision needlessly overturned decades of reasonable restrictions on political activity by corporations. It has led to an unsavory increase in the influence of corporate and other special-interest money in the political process. Promising initiatives to counter some of the effects of the decision have been introduced in Congress, but they have been stymied. That has led some frustrated activists to propose that the U.S. Constitution be amended to overturn Citizens United. As part of that campaign, voters in the city of Los Angeles will be asked on May 21 to answer the following question:
"Shall the voters adopt a resolution that there should be limits on political campaign spending and that corporations should not have the constitutional rights of human beings and instruct Los Angeles elected officials and area legislative representatives to promote that policy through amendments to the United States Constitution?"
Critical as we were of Citizens United, we aren't convinced that Proposition C is the best way to fix the country's campaign finance system. Although it purports to "instruct" members of Congress from this area to support a constitutional amendment, in fact they wouldn't be bound by it. Thus, it would most likely have little or no effect.
A more significant problem is that the "instruction" voters would be sending to their elected representatives would be vague and question-begging. Amending the Constitution ought to be a disciplined and careful process, because words matter. Precision is especially important when it comes to the 1st Amendment, which has escaped being amended for two centuries despite public outrage over court decisions involving political dissent, obscenity and flag burning.
Yet Proposition C doesn't offer an actual text of a proposed amendment. Instead, the hoped-for amendment is described (in a sample ballot mailed to voters) in terms of its effects: It should overturn parts of Citizens United and Buckley vs. Valeo, the 1976 Supreme Court decision holding that wealthy individuals could spend unlimited amounts of their own money on independent advocacy. It also should assert that corporations lack the constitutional rights of individuals and have no free-speech right to influence the electoral process. Finally, it should permit limits on political spending designed to ensure that "all citizens — regardless of wealth — have an opportunity to have their political views heard."
But these intentions could be implemented in a variety of ways, some of them worrisome. Take the sweeping assertion that corporations "do not have the constitutional rights of human beings." Would that "instruction" be limited to political speech, or would it also tell members of Congress that they should feel free to strip businesses of other protections, such as freedom from unreasonable searches and seizures and the right to due process in civil lawsuits? What about media corporations? Would magazines and newspapers still have the right to endorse candidates? In judging Proposition C, voters won't have the advantage of seeing any wording on that issue or any other.