The Right Goal, the Wrong Approach

Monica Youn is the Brennan Center Constitutional Fellow at New York University School of Law.

October 24, 2012

A proposal to amend the Constitution can function on two levels, the actual -- forcing a change in constitutional law -- or the aspirational -- transforming popular understanding and engagement.

It’s a lot easier for politicians to back an unlikely constitutional amendment than to back reforms to change their own fund-raising .

I have serious doubts that trying to amend the Constitution to overturn Citizens United would work on an actual level, even apart from the obvious problem of amassing the necessary support. An amendment strategy assumes there is a silver bullet that can take care of a particular problem with a simple constitutional proposition, or a set of simple propositions. But even critics of the ruling (myself included), cannot agree on the crux of the problem -- whether it’s corporate personhood, equating money with speech, or the special status of elections in First Amendment law. More fundamentally, the complex regulatory problems of money in politics require flexibility and nuance and resist such encapsulation.
Even if you pick the right target for the silver bullet, you can never underestimate an unwilling Supreme Court’s ability to dodge it through an interpretive evasion. This creates a separate dilemma -- either you draft your amendment narrowly, accepting that resistant judges and private actors will make the most of whatever loopholes remain, or you go broad, creating potentially enormous problems of unintended consequences in the sensitive sphere of expressive freedoms.
On the aspirational level, however, a constitutional amendment strategy may be more valuable. Unlike ordinary legislation, an amendment has a unique power to capture the public imagination, catalyzing awareness and engagement. Such a strategy can yield concrete gains whether or not the proposed amendment is adopted. An educated and energized constituency is a lasting resource that can be mobilized to push for other, more readily achievable reforms.
We should, however, be suspicious when politicians use the aspirational as political cover to avoid talking about the actual. Even in the post-Citizens United era, there are reforms that are within reach and that would make a difference -- such as greater disclosure, public financing, regulatory reform and a Federal Elections Commission overhaul.
But it’s a lot easier for politicians to sign on to a highly unlikely constitutional amendment than to back reforms that would force changes in their own fund-raising practices. Treating a largely political problem as a purely constitutional problem can be just another way of passing the buck, of blaming the Supreme Court for our own failings.