We already dispensed with the arguments against adopting an amendment by James Marc Leas and Rob Hager the first time they offered them up. But they’re back with another piece published in CounterPunch on July 9. And once again, their entire thesis is essentially a full-throated defense of the “we already have Article III, Section 2” argument, meaning Congress has the power to regulate the Supreme Court and can pass legislation prohibiting the SCOTUS from involving itself in electoral legislation.
Their entire argument boils down to this:
Congress could overturn Citizens United by including a clause under Article III, Section 2 stating that “no federal court shall have jurisdiction to hear a case involving constitutional review of this act” when it reenacts legislation restricting corporate and other private money in elections.
The Justices on the Supreme Court know that Article III, Section 2 exists. They know its restrictions. That’s why they’re careful to base their decisions on the First and Fourteenth Amendments, not Article I, Section 4. If Leas and Hager are suggesting this is a gentle reminder, good luck with that. But if they’re suggesting that the law just needs to be invoked, then by that logic, Congress could pass any clearly unconstitutional law — women shall not be allowed to vote or run for office, for instance — and prohibit the Court from overturning it by inserting that one clause, eliminating judicial review altogether. And good luck with that. I’m sorry, guys, but Congress cannot instruct the Supreme Court to stop enforcing the Bill of Rights, and trying would be seen as partisan tampering with constitutional checks and balances.
In paragraph after paragraph, Leas and Hager make it clear that they refuse to accept that the Supreme Court is, in fact, supreme. Even if the Court has encroached on Congressional power to regulate elections, they have done so by invoking sections of the Constitution that have nothing to do with elections or campaigns. Congress can add all the clauses restricting Federal Court jurisdiction it wants and it will have zero effect on the ability of the Court to continue to make the same rulings on First and Fourteenth Amendment grounds. Whether or not the Court’s logic makes sense (and it doesn’t), that is what they have done and that authority cannot be challenged by Congress.
The same checks and balances Leas and Hager repeatedly reference work both ways. As long as money remains the equivalent of speech (Buckley), all forms of campaign finance regulation will continue to be treated as First Amendment issues by the Court. No legislation employing even the most spectacular use of the English language will change that. Leas and Hager spend a lot of time justifying a tactic that simply won’t work, even if implemented exactly as they describe. Even if the Congress voted unanimously, it won’t work. I can’t state it enough, guys. It won’t work. It won’t work. It. Will. Not. Work.
Another constitutional provision–the 11th Amendment–could have enabled Montana to maintain its state anticorruption law and set an example all states could have followed to effectively overturn Citizens United on a state-by state basis. Montana’s state Supreme Court’s had presented well-reasoned and courageous resistance to Citizens United in deciding that the federal case did not apply in Montana. But Montana’s Democratic Attorney General deliberately and ignominiously lost his defense of his state Supreme Court’s decision by his refusal to assert the Constitution’s 11th Amendment “sovereign immunity”—the constitutional provision that strips the federal courts of jurisdiction to hear private suits against states.
We already covered the problem with the Eleventh Amendment approach here but suffice it to say that Justice Kennedy is just as aware of the Eleventh Amendment’s existence as he is Article III, Section 2. He was prepared for that. Let’s take a look at this instructive passage from Justice Stevens’ partial dissent in the Citizens United ruling:
The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.
Wouldn’t this be the perfect place for Justice Stevens to suggest the Eleventh Amendment defense to help find some insulation from this decision for the states? Justice Stevens never mentions it. Not once. Do Leas and Hager really think they know something he doesn’t know? Would Justice Stevens even mention the states if he thought the Eleventh Amendment protected them from the Citizens United ruling? Do Leas and Hager think the states’ rights argument never occurred to Justices Roberts and Scalia? This pattern of expecting a Court with a corrupt majority to entertain technicalities without finding technicalities of its own to overcome those issues is an expression of breathtaking naivete. But that’s not all Leas and Hager have to say…
The proposal to use ordinary legislation to at once restore congressional authority over elections, restore the political question doctrine, get the Court entirely out of the field of election finance law, restore previous restrictions on corporate and other private money in elections, and enact new law removing all private interest money from elections, is not on the slippery slope that Public Citizen and others fear.
Leas and Hager may be mostly correct about the slippery slope issue (that it’s a red herring) but there’s still one big problem. It won’t work! Legislation cannot “get the Court entirely out of the field of election finance law” because these rulings have nothing to do with election finance law. Let me state it again for the credulous: Citizens United has nothing to do with election finance law. Nothing. It rests entirely on the First Amendment protection to spend money to reach all possible listeners (Buckley) as applied to legal fictions by virtue of their effective citizenship afforded by the Fourteenth Amendment (Santa Clara). The First Amendment is mentioned 60 times in the Citizens United ruling. Article I, Section 4 isn’t even cited in the dissent.
Leas and Hager refuse to accept this basic truth. They can talk about not legitimizing the Supreme Court’s power grab all they want, no amount of invoking Article I, Section 4 or Article III, Section 2 (or the Eleventh Amendment, for that matter) will change the trajectory that the Court has been on for decades. Neither Congress nor the states have the authority to achieve any of the outcomes Leas and Hager believe is possible.
An amendment that passed Congress and 38 states could well be full of similar unnecessary, and presumably unintended, consequences that the Roberts 5 are fully able and eager to exploit to continue corrupting politics and entrenching judges like themselves into the foreseeable future. The organizations promoting such amendments are asking their well-motivated followers, in effect, to take aim and shoot themselves in their own foot by sending money to support further propagation of such counter-productive ideas.
This is an outrageous statement on multiple levels. First, any and every piece of legislation or language in an amendment can be prone to creating unintended consequences, including the legislative tack advocated by Leas and Hager. Worse, people give money to support all kinds of long-shot causes and candidates. The only reason to mention fundraising in such terms, twice, is to cast any organization raising funds to help pass an amendment as a group of opportunists milking a gullible demographic, a charge that could easily be brought against every passionate group of people engaged in any political activity. But worst of all, after dispensing with the “slippery slope” argument that some think quite legitimate, they make essentially the same argument in assuming that an amendment proposal advanced to the states for ratification would necessarily include unintended consequences, ergo, present a new slippery slope for the Supreme Court to exploit. Make up your minds, guys.
Lastly, there is a stunning level of political naivete underlying the entire thesis by Leas and Hager. Suggesting that attempts to impeach a sitting Justice or pack the Court would be more politically feasible than passing a constitutional amendment is utterly preposterous. There is no chance that either of those two actions would be perceived as anything but a partisan attack. There is no chance that either of those two actions would not result in even more division and acrimony in both the Congress and the electorate. Whereas, a constitutional amendment can be written in a non-partisan way, despite the many proposals that are not. An amendment really can address just the issues underpinning Citizens United without the added partisan fluff. But any attempt to directly tinker with the judiciary is a recipe for instant gridlock and recriminations. Impeaching a sitting Justice for a poor ruling that four other Justices agreed with wouldn’t do harm? That wouldn’t lead to an even more polarized nation? If you’re trying to burn the Congress down, you couldn’t be more effective with kerosene and flamethrowers.
This movement is about convincing voters to assert their individual rights, not about convincing elected officials to do the right thing. The latter has always been a fool’s errand while the former is the only thing that has ever changed the course of the nation. Encouraging representatives to understand and rally themselves and their constituents around obscure and arcane sections of the constitution is about the least inspiring campaign anyone can imagine. Encouraging voters to gather signatures and demand their representatives pass an amendment to overturn Citizens United may sound overly simplistic relative to the task, but it’s a thousandfold more motivating, indescribably easier to rally around and affords the best chance at achieving a truly bipartisan remedy. Staying in the legislative weeds promises nothing more than incremental change in a nation starving for wholesale political revolution, and tinkering with the judicial branch via packing or impeachment would do nothing but divide the nation even more than it already is. A people’s movement to adopt an amendment that neuters the Court can bring the people together. Partisan congressional adjustments to the judiciary would merely be perceived as an attack on checks and balances and have the opposite effect. Like it or not, politically, that’s reality.
Their legislative remedies won’t work. Their judicial remedies are worse than the disease. And their political acumen is a catastrophe. Leas and Hager have to stop. They just have to stop.