Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues
Although public financing proposals contain an incentive for compliance with spending limits ─ the receipt of public monies or other benefits ─ it does not appear that such incentives jeopardize the voluntary nature of the spending limitation. That is, a candidate could legally choose not to comply with the spending limits by opting not to accept the public benefits. Therefore, it appears that a proposal establishing a voluntary public finance program for congressional candidates, requiring compliance with spending limits, would likely be upheld as constitutional.
In Citizens United v. FEC, the Supreme Court invalidated two provisions of the Federal Election Campaign Act (FECA), codified at 2 U.S.C. § 441b, finding that they were unconstitutional under the First Amendment. It struck down the long-standing prohibition on corporations using their general treasury funds to make independent expenditures,175 and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which amended FECA, prohibiting corporations from using their general treasury funds for “electioneering communications.”176 BCRA defines “electioneering communication” as any broadcast, cable, or satellite communication that refers to a clearly identified federal candidate made within 60 days of a general election or 30 days of a primary.177 The Court determined that these prohibitions constitute a “ban on speech” in violation of the First Amendment. 178
As a result of the Court’s decision being one of constitutional interpretation – not statutory interpretation – amending the Constitution is an option for overturning the ruling directly. In order to restore FECA provisions that were in effect prior to the Court’s ruling, it appears that a proposal to amend the Constitution would need to allow, at a minimum, enactment of legislation that prohibits corporations and labor unions from using their general treasury funds to make expenditures for communications that expressly advocate election or defeat of a clearly identified federal candidate and for electioneering communications.
In the 111th Congress, proposals have been introduced that would amend the Constitution. In accordance with Article V of the Constitution, such joint resolutions would require approval by two-thirds of each House, would become effective upon ratification by the legislatures of three- fourths of the states, and specify that approval is required within seven years from the date of submission. 179
This portion of the report discussing a constitutional amendment was written by L. Paige Whitaker. Citizens United, slip op. at 20-51. See id. 2 U.S.C. § 434(f)(3). Citizens United, slip op. at 22.
179 U.S. CONST. art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…”) It has been accepted that Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Beginning with the Eighteenth Amendment, save for the Nineteenth, Congress has included language in all proposals stating that the amendment should be inoperative unless ratified within seven years. Specifically, seven-year periods were included in the texts of the proposals of the 18th, 20th, 21st, and 22nd Amendments. In proposing the 23rd Amendment, it appears that Congress concluded that including a time limit in the text merely cluttered up the amendment, and therefore in it, and in (continued...)
Congressional Research Service