Josh Hawley’s ‘Citizens United’ stunt isn’t what it seems

Sen. Josh Hawley is announcing a bill aimed at unraveling the Citizens United decision that’s long been a liberal target. At first glance, it seems strange for the right-wing lawmaker to press against the 5-4 conservative-majority ruling credited with unleashing dark money in politics. 

But for one thing, overturning the decision requires the Supreme Court to do so, or a constitutional amendment. That’s because the 2010 case was decided on constitutional grounds — under the First Amendment — as opposed to statutory grounds. (For an example going the other way, in 2009, then-President Barack Obama signed into law the Lily Ledbetter Fair Pay Act, which overrode a 2007 Supreme Court case decided on statutory, not constitutional, grounds.) 

Indeed, the Missouri senator known for demagoguing in hearings and fist-pumping on Jan. 6, 2021, reportedly said Monday: “I am an originalist … and I don’t think you can make an originalist case for business corporations being treated like individuals when it comes to the right to political speech.” His stated criticism is true enough, but originalism being a (farcical) mode of constitutional interpretation is a clue that simple legislation wouldn’t overturn the ruling he’s supposedly criticizing.

Hawley is a former clerk to Chief Justice John Roberts, by the way.

Then there’s what the measure wouldn’t do. As RealClearPolitics observed, it “ironically … would not stop the conservative group that upended modern election law. Citizens United is itself a non-profit and, therefore, wouldn’t be affected.”

Safe to say, leaving nonprofits out of the equation wouldn’t solve the dark money problem. Look at the 2022 midterm elections, for example. The nonprofit One Nation donated $53.5 million to the GOP-aligned Senate Leadership Fund, the largest political contribution of any organization that election cycle.

So Hawley’s faux populist stunt either legally can’t go anywhere, politically won’t go anywhere, won’t work the true reform it implies if it does go anywhere, or all three.   

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