How Congress Can Overrule Citizens United

By Bruce Ackerman and Ian Ayres

HUFF POST:….It’s a mistake to treat Justice Kennedy’s opinion for the Court as written in stone. To the contrary, Kennedy explicitly says that it “surely” would be a “cause for concern” if “elected officials succumb to improper influences from independent expenditures.” He simply found that Congress hadn’t established that improper  influence was a real problem, and even suggested that he would give “due deference” to such a finding….

While this is inevitable, the president should call for a statute that urges the Supreme Court to make this the last election that lurches toward plutocracy. Congress should pass a law that puts the Court on notice of emerging realities. After formally finding the facts, the statute should grant the Attorney General standing to urge the judiciary to issue a declaratory judgment repudiating Citizens United in the light of changed conditions.

The strategy proved remarkably successful. While lower courts generally treat Supreme Court precedent as binding, the Justice Department used the Congressional findings to convince the courts of appeal to ignore Breedlove and declare the poll tax unconstitutional. The Supreme Court then dealt the final blow by declaring all poll-taxes unconstitutional in its landmark decision of Harper v. Board of Elections. The Court announced its decision just as the Section ten cases were reaching its docket. But its great turnaround cannot be understood without recognizing the role of Congress and the president in shifting the terms of the constitutional debate. (See the detailed study by Bruce Ackerman and Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. Rev 63 (2009).)… (more)