Last week, the Clinton campaign released a statement calling Donald Trump’s acceptance speech at the Republican National Convention a “lesson in hypocrisy.” In light of this statement, one would think the campaign would work hard to ensure the same criticism could not be easily used against Hillary Clinton in the aftermath of her acceptance speech at the Democratic National Convention. Unfortunately for Clinton, her campaign staff and speechwriters failed miserably in this regard. One area in particular relates to her remarks about the Supreme Court, including the appointment of justices and the Citizens United decision.
“That’s why we need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them,” Clinton said. “And we’ll pass a constitutional amendment to overturn Citizens United!”
These remarks came after Clinton told Americans “our democracy isn’t working the way it should.” Which was quite an extraordinary statement in itself coming from the candidate who is trying to sell a message that she should be elected to the presidency because of nearly 40-years in public service. It evidently did not occur to Clinton that her actions over the past 40-years have contributed to why things are not working the way they should — but that is beside the point.
As a quick reminder, Citizens United refers to the 2010 Supreme Court ruling that held political spending is protected under the First Amendment as a form of free speech. The Court found that groups are not allowed to give unlimited money directly to a candidate or political party, but they cannot be prohibited from spending money through other means to support or criticize candidates in an election.
Some have suggested that Clinton’s anger over the Citizens United matter is personal. That is because the underlying case actually involved a group that had been prohibited from airing an anti-Hillary film in the lead up to a 2008 democratic primary. In an article published in Commentary Magazine, Noah Rothman wrote:
This is the most galling aspect of the former first lady’s proposal: it’s personal. Hillary Clinton doesn’t just want to make certain political speech illegal; she wants to make speech that is explicitly about her illegal.
Whatever the motivations behind her anti-Citizens United crusade, Clinton’s advocacy on this matter has revealed her blatant hypocrisy and selective approach to the application of the stare decisis doctrine. Stare decisis is Latin for “to stand by things decided” and the doctrine generally means courts will adhere to prior decisions on particular legal matters.
For example, almost any time a new case on the issue of abortion comes before the Supreme Court, the test is essentially whether the abortion law is consistent with the Court’s 1973 decision in Roe v. Wade. If the abortion law violates the standards set forth in Roe v. Wade, it will almost certainly be found unconstitutional.
Clinton regularly references the holding in Roe v. Wade as something that should never be changed, on the basis of stare decisis. Earlier this year on the 43rd anniversary of Roe v. Wade, Clinton said the decision “is the touchstone of our reproductive freedom, the embodiment of our most fundamental rights, and no one – no judge, no governor, no Senator, no President – has the right to take it away.”
In fact, back in 2005 and 2006, then-Senator Clinton opposed the nominations of the John Roberts and Samuel Alito because of her belief that they might vote to overturn a previous court decision —Roe v. Wade. She even joined in on a filibuster of Alito in an effort to block his nomination altogether.
Clinton does not, however, hold the Court’s decision in Citizens United in the same regard. Despite the fact that the right to free speech is at stake, she wants to appoint judges who will overturn the decision. Surely the right to free speech, which is specifically spelled out in the First Amendment, is at least equally important as the right to have abortion. Not to Hillary Clinton, however, who could not have been more clear about this in her acceptance speech Thursday night.
In case you are still not yet entirely persuaded, Clinton’s references to the Supreme Court and Citizens United are really nothing new. They are simply an extension of an ongoing campaign message targeted at the Democratic Party base and Bernie Sanders supporters.
All the way back in May 2015, the Washington Post described how Clinton hoped to make Citizens United a major issue in the upcoming campaign. An anonymous source who heard Clinton speak at a private meeting with donors in Brooklyn told the newspaper, “She got major applause when she said would not name anybody to the Supreme Court unless she has assurances that they would overturn” Citizens United.
And let’s be clear, the country is not going to pass a constitutional amendment to overturn Citizens United. Hillary Clinton and any other serious political observer knows that will never happen, especially in this political climate. So, the line about passing a constitutional amendment should not be taken seriously. It simply will not happen. Therefore, Clinton’s only path to overturn Citizens United is through packing the Supreme Court with appointees who will overturn the previous 2010 decision. And do not expect her to stop with Citizens United and the First Amendment, either. Although she will almost surely never say it out loud, Clinton will seek out judicial appointees just as willing to overturn Second Amendment caselaw too. It is a double standard that is frightening to many and one reason this election is so important.
This is an opinion piece. The views expressed in this article are those of just the author.