Where Hillary Clinton is concerned everything is complicated. We learned today that Clinton promised donors that if she is elected president, she would not nominate anyone to the Supreme Court without assurances that the nominee would rule to overturn the Citizens United campaign finance decision.
That case, Citizens United v. Federal Election Commission, was directly tied to her 2008 presidential campaign, and it also cleared the way for vast spending on federal elections by Super PACs, at least two of which — Correct the Record and Priorities USA Action — are supporting…Hillary Clinton.
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The case and resulting court ruling — best known for easing limits on the amount of money companies, unions, and other associations could spend to influence the outcome of federal elections — grew out of an effort to broadcast a film, Hillary: The Movie, that was aimed at undermining her candidacy for president in 2008.
A lower court ruled that the organization that made the film, Citizens United, could not air it because doing so would have violated the ban on “electioneering communications” sponsored by corporations and unions in the 30 days preceding a presidential primary. The decision assumed that the film was a de facto attack advertisement and not, as Citizens United claimed, a documentary.
The court eventually ruled that not only had the lower court wrongly blocked the broadcast, but that the law on which the lower court’s decision was based, the Bipartisan Campaign Reform Act of 2002, placed unconstitutional limits on the political speech of large organizations and wealthy donors. The result was a ruling that allowed potentially unlimited sums to be spent by large “associations of individuals” on influencing voters.
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In the wake of the Citizens United decision, increasingly vast sums of money have poured into national politics, the spending of which is directed not by candidates, but by Super PACs that often explicitly support individual candidates but cannot legally “coordinate” their spending with the candidate’s campaign.
Clinton’s opposition to the Citizens United ruling hardly makes her unique among Democrats. The only other declared candidate for the Democratic presidential nomination, Vermont Sen. Bernie Sanders, has made virtually the same promise with regard to Supreme Court nominees, and President Obama memorably attacked the ruling while members of the Supreme Court sat directly in front of him during a State of the Union address.
But the notion of a campaign finance litmus test is more than just another campaign hypothetical. By the middle of the next president’s first term, four of the nine current justices will be 78 years old, or older, meaning that a spate of retirements in the coming years is highly likely.
Clinton’s explicit promise to work to overturn Citizens United will, undoubtedly, spur attacks on her for the supposed hypocrisy of benefiting from the unlimited spending that the court decision allowed while at the same time condemning it. However, as her surrogates have pointed out, it isn’t reasonable to ask her to, in effect, unilaterally disarm in the face of opponents who will be supported by the advertising and advocacy that Super PACs can muster.
In fact, the 2016 presidential race promises the possibility of a perfect piece of political irony — Super PACs advocating for candidates explicitly campaigning on a promise to limit the power of Super PACs to advocate for candidates.
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