Bernie Sanders Wants To Kill Citizens United. It's Actually Not That Simple.

Overturning the decision is more complicated than the senator lets on.
Bernie Sanders has some thoughts about how to fix Citizens United.
Bernie Sanders has some thoughts about how to fix Citizens United.

To commemorate the six-year anniversary of the Supreme Court's reviled Citizens United decision, Sen. Bernie Sanders (I-Vt.) lamented the occasion on Twitter.

The Democratic presidential candidate called it "one of the most disastrous" rulings in his lifetime.

"This decision hinges on the absurd notion that money is speech and that corporations are people," Sanders tweeted, saying it's given the richest of the rich "unlimited influence in our elections."

These critiques have merit, as The Huffington Post's Paul Blumenthal explained Thursday. But then came this curious tweet:

There's nothing special about wanting to overturn Citizens United. Both Sanders and his chief opponent for the Democratic nomination, Hillary Clinton, have made opposition to the ruling a litmus test for their eventual Supreme Court nominees. (Clinton also mourned the ruling on Thursday with an editorial.) 

But short of passing a constitutional amendment, fixing Citizens United is much more complicated than simply hoping one of your nominees will help get the decision reversed by a post-Sanders court. 

For one, an America where a democratic socialist like Sanders is president may very well affect the politics of confirmation hearings -- and maybe the Supreme Court itself.

As things stand now, the Senate, which confirms Supreme Court nominees, is still GOP-controlled, and it is still far too early to know for sure whether Democrats can take it back. But even if Democrats regain a majority, President Sanders could face staunch opposition from Republicans to get his anti-Citizens United nominee confirmed, which would require a 60-vote supermajority in the Senate.

Then there's the court itself. A new Sanders appointment will necessarily depend on a conservative justice retiring. With two of them approaching 80 -- Justices Antonin Scalia and Anthony Kennedy -- it may very well be one of them. Or both. But what if the prospect of a President Sanders is simply too much for them? Will they hold on to their seats for dear life? That's a long shot, but it's still possible.  

But imagine Kennedy, the author of Citizens United, does retire, and President Sanders does get his dream replacement confirmed. What then? You would still need a case engineered to overturn Citizens United. Maybe the Federal Election Commission decides to crack down on a corporation giving millions to a super PAC, or a state passes a law banning such donations. 

Maybe then you'd have a new court case under the First Amendment. But even that case would take time to be litigated and move up the appellate chain. The process could take years. And once the lucky case finally reaches the Supreme Court, there's no guarantee the justices will actually agree to hear it. Their discretion in the matter is essentially unfettered

To be sure, cases raising important constitutional issues tend to catch the court's attention more often than not. And as ThinkProgress' Ian Milhiser notes, it is not beyond the realm of possibility to think that the right case challenging Citizens United could eventually land before the justices. But Supreme Court dynamics -- legal, institutional and otherwise -- are a tricky thing. Sanders' tweet obscures that reality.

Civics aside, whether it's Sanders or someone else who takes the White House, the future president's nominees put the future of the Supreme Court -- and maybe even the country -- very much on the line.

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