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Mitch McConnell Doesn’t Know What A ‘Constitution’ Is

By Ian Millhiser  

"Mitch McConnell Doesn’t Know What A ‘Constitution’ Is"

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macResponding to President Obama’s largely correct claim that the Supreme Court “reversed a century of law to open the floodgates – including foreign corporations – to spend without limit in our elections,” Senate Minority Leader Mitch McConnell put out a press release claiming Obama was “completely wrong” because a federal law prohibits

[f]oreign nationals, specifically defined to include foreign corporations, are prohibited from, quote, “directly or indirectly” making “a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election.”

Because “[n]one of these prohibitions were at issue in the Citizens United case,” McConnell claims that they remain completely intact, unchanged in any way because of the Citizens United decision. McConnell, however needs to go back to high school civics class, because it is clear from his press release that he doesn’t understand the most basic thing about the Constitution.

Citizens United is what is known as a constitutional decision of the Supreme Court of the United States. Specifically, Citizens United held that laws banning corporations from spending their vast treasuries to influence elections violates the constitution because they “impose[s] restrictions on certain disfavored speakers.” Congress could not call out one class of entities—corporations in the Citizens United case itself—and place limits on how much they can spend to broadcast their views about the election.

When the Supreme Court hands down a constitutional decision, the effect is not simply to strike down a single law. Rather, any law which conflicts with the Supreme Court’s reasoning is no longer enforceable. Thus, for example, when the Supreme Court declared public school segregation unconstitutional in Brown v. Board of Education, it didn’t just mean that Linda Brown got to go to a previously whites-only school. It meant that all segregated public schools anywhere in America would eventually be shut down.

Recall then that Citizens United held that Congress cannot select one class of entities who are not allowed to engage in electioneering. If this rule applies to a law banning a large class of entities from electioneering, such as corporations, it will also apply equally to a law that prohibits a smaller class of entities from electioneering, such as the law cited by Senator McConnell. This is really basic stuff; the whole point of having a Constitution is that laws which are held to conflict with it are no longer any good.

Admittedly, McConnell is correct when he says that the Court chose not to rule on the law he cites because a challenge to that law was not directly before them, but this really doesn’t matter all that much. The reasoning of Citizens United is broad, and it applies to all future cases. Once the law banning foreign corporate electioneering reaches the Supreme Court, they will either have to strike it down, or announce an entirely new rule exempting that law from Citizens United’s broad scope.

Perhaps the justices will decide to cast aside precedent once again when that day arrives—they certainly have made clear on multiple occasions, including the Citizens United case itself, that they have no compunctions about disregarding even longstanding precedents on a whim. Until that day, however, Citizens United’s reasoning stands, and McConnell is simply not telling the truth when he claims that an Act of Congress can triumph over a constitutional decision of the Supreme Court.

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