Among other things, Hillary Clinton discussed using a litmus test for potential Supreme Court justices during a visit to Madison, Wisconsin, yesterday. We addressed a similar issue some time ago coming from another Democrat, Bernie Sanders.
Hillary made several comments about election law during her speech, echoing the earlier comments from Sanders on current election law:
A lot of Americans are concerned about money in politics, and rightly so. It’s a serious problem that we have to address.
But Supreme Court justices are appointed for life. They’re not making decisions based on campaign contributions . . . . And consider, if you will, the dangerous turn the Court has taken in recent years toward protecting the rights of corporations over those of people.
Now you may have heard of the case Citizens United. The Court ruled that corporations have an unfettered right to free speech, just like you and me. That means no limit on what corporations can spend independently to influence elections. And – big surprise – a flood of money from rich people, corporations and special interests has poured into our politics.
Citizens United opened the door to the creation of Super-PACs and between the 2008 and 2012 presidential elections, spending by outside groups tripled. In 2014, the top 100 donors to super PACs spent nearly as much as all 4-million-750-thousand small donors in the country combined.
Now the idea, I believe, that money is speech turns our Constitution upside down. Wealth should not be privileged in the courts – in fact, it should have no privilege. Yet at a time when inequality between working Americans and those at the top is starker than ever, the Supreme Court has given the wealthiest Americans even greater power to affect what happens in our democracy.
. . . If the Court doesn’t overturn Citizens United, I will fight for a Constitutional amendment to limit the influence of money in elections. It is dangerous to our country and poisonous to our politics.
Hillary seems exceptionally concerned about super PACs. Yet the super PAC supporting her is leading the fundraising race of the super PACs supporting all candidates remaining in the field. She is benefitting from the corporate spending and speech that she rails against.
As we have detailed regarding Clinton's calls for a constitutional amendment to overturn Citizens United in the past, scholars on the right and left agree that such an amendment would have disastrous effects on the right to free speech and protect the power of the political establishment against the voice of ordinary citizens.
The assertions in the statement above speak to Clinton's misunderstanding of the importance of free speech, the nature of the political system, and the purpose and power of the Judicial Branch, especially given the clearly articulated ABA Rules of Judicial Conduct. On one hand Clinton argues that the Court has a great deal of impact and should be respected; on the other she states that it’s irrelevant and she will work to amend the constitution should the Court decide contrary to her assessment of Citizens United.