How to Reverse Citizens United

By David Cole, The Atlantic

13 March 16

What campaign-finance reformers can learn from the NRA

ew Supreme Court opinions have been as controversial as Citizens United v. Federal Election Commission, the 2010 decision that struck down limits on corporations’ campaign expenditures, finding them to be an abridgment of free speech. Like most of the Court’s recent campaign-finance rulings, the case was decided 5–4, with Justice Antonin Scalia in the majority. Even before Scalia’s death, Citizens United featured significantly in the presidential primaries. Bernie Sanders had made its negation, through a constitutional amendment, a key goal of—and rationale for—his candidacy. Both Donald Trump and Hillary Clinton had condemned the existing campaign-finance system, and Clinton had vowed to appoint “Supreme Court justices who value the right to vote over the right of billionaires to buy elections.”

Now, with a new justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.

But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.

Recent history suggests a more reliable means of constitutional change. A quarter century ago, the idea that gay and lesbian couples had a constitutional right to marry was at least as far-fetched as campaign-finance reform has seemed in recent years. And in 1991, former Chief Justice Warren Burger dismissed as fraudulent the notion that the Second Amendment protects an individual right to bear arms. But in 2008, in District of Columbia v. Heller, the Supreme Court recognized an individual right to bear arms, overturning almost 70 years of settled law. And in 2015, the Court declared in Obergefell v. Hodges that gay and lesbian couples have a right to marry. Both changes came about gradually, through decades of work by citizens’ groups—such as Freedom to Marry and the National Rifle Association—committed to an alternative constitutional vision.

If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbooks.

The place to start the fight against Citizens United is not the Supreme Court, or even Washington, D.C., but the hinterlands. When federal constitutional law is against you, you must look for alternative forums in which to press your case. And as with guns and family relations, most of the laws regarding elections are made by the states.

Both gun-rights and marriage-equality advocates began their campaigns in the states most sympathetic to their cause—Florida for the NRA, Vermont and Massachusetts for marriage-equality activists—and then sought to export favorable precedents across state lines. The NRA sought to expand gun-rights provisions in state constitutions, while pressing for legislation that protected the right to carry concealed weapons and insulated gun manufacturers from liability for injuries caused by their products. Gay-rights groups championed parental rights, nondiscrimination ordinances, and modest domestic-partnership benefits for gays and lesbians. By the time the Supreme Court recognized a right to bear arms, most state constitutions had already done so, and by the time the Court declared that gay and lesbian couples had a federal right to marry, 37 states and the District of Columbia had recognized same-sex marriage.

Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones. And by making realistic amounts of public financing available, the reforms have made it possible for a wider range of candidates—including, so far, waitresses, teachers, and a convenience-store clerk—to run for office and win.

As the gun-rights and marriage-equality campaigns demonstrate, movements begun in the states can, if they develop sufficient momentum, jump the track and influence federal constitutional law. The normative arguments for a right to same-sex marriage, for example, are largely the same whether one is arguing in a Massachusetts state court, on behalf of a ballot initiative in Maine, or before the U.S. Supreme Court. In this way, state-law developments can ease the way for a Supreme Court decision. The Court did not recognize the right of indigent criminal defendants to free legal representation until 35 states had provided such representation. And the Court did not strike down anti-miscegenation laws until interracial marriage had been legalized in 34 states.

The NRA also eased the way for constitutional change by patiently cultivating a shift in the views of the legal academy. In the last decades of the 20th century, the group began providing grants and awards to legal scholars writing about the Second Amendment. These scholars—including, most prominently, Stephen Halbrook and Don Kates—unearthed historical evidence supporting the notion that the Second Amendment was intended to protect not only the prerogative of states to field militias, as conventional wisdom and constitutional case law then held, but also an individual right to bear arms. By the time the Supreme Court took up the question, this revisionist account had become the predominant view in legal scholarship, and had been lent credence by a number of highly respected liberal scholars, including Akhil Reed Amar, Sanford Levinson, and Laurence Tribe. When, in 2008, the Court made this view the law of the land, the majority’s opinion closely tracked the revisionist history. As Walter Dellinger, who unsuccessfully defended the District of Columbia’s gun law in the Supreme Court, told a gun-rights scholar the day the decision came down, “You know, it was the scholarship that won the case.”

Scholarship could similarly lay the groundwork for a new approach to campaign finance. One promising critique of the Court’s recent rulings concedes that spending restrictions limit First Amendment rights, but maintains that the constitutional interest in protecting speech is outweighed by other compelling considerations. Although the Court’s most recent rulings assert that the only legitimate basis for restricting campaign spending is curtailing bribery—what the Court calls “quid pro quo corruption”—a number of scholars are persuasively pressing a broader understanding of the state’s interests. For example, Zephyr Teachout, a law professor at Fordham, has shown that the Constitution’s framers expressed an active desire to fight corruption, a category they understood to include, beyond mere bribery, the undue influence of wealth on politics. Robert Post, the dean of Yale’s law school, argues that ensuring “electoral integrity” is essential to a functioning democracy, and justifies limits on the free flow of campaign cash. And in an important new book, Plutocrats United, Richard Hasen, a law professor at UC Irvine, maintains that the state’s interest in equality can justify rules aimed at countering money’s distortion of politics. Each of these arguments could provide a path toward a constitutional jurisprudence that allows states and Congress more leeway in regulating campaign spending.

In addition, the Brennan Center for Justice’s Democracy Program is encouraging social-science research that will test some of the questionable empirical assumptions underlying current campaign-finance jurisprudence—such as the Court’s notion that only direct contributions to a candidate’s campaign have the potential to corrupt, while massive contributions to and expenditures by so-called independent super pacs do not.

In a powerful dissent in 2014, Justice Stephen Breyer demonstrated how the Court’s recent 5–4 decisions striking down campaign-finance laws are out of step with the Court’s own precedents, thus laying out the logic for a reversal. In theory, he just needs one more vote.

And yet, even if Scalia’s replacement shifts the ideological balance of the Court, the effort to undo Citizens United will still face daunting hurdles. The Court hesitates to overturn any past decision, but it is especially reluctant when a reversal means cutting back on a constitutional right, rather than establishing a new one (as pro-life opponents of Roe v. Wade have learned).

In at least one regard, campaign-finance reformers do have a head start as compared with gun-rights and gay-rights advocates in the 1980s: Public opinion is already on their side. A September 2015 Bloomberg poll found that about 80 percent of Republicans and Democrats alike oppose Citizens United. But even so, reformers must combat what may be their biggest obstacle to meaningful change: public skepticism that anything can be done to fix the problem.

Some argue that reformers’ focus on the corrupting influence of wealth has only made voters more likely to dismiss reform efforts as futile. As David Donnelly, the president and CEO of Every Voice, a group that supported the electoral-reform campaign in Maine, told me, “If all voters hear about are the super-rich and their super pacs, they are likely to become demoralized, to feel that nothing can be done.” A recent Gallup poll found that 75 percent of Americans think government corruption is “widespread.” Meanwhile, the 2014 elections saw the lowest voter turnout in more than 70 years.

In this sense, the significance of the campaign-finance measures now springing up around the country could extend far beyond the states and cities that adopt them. If campaign-finance-reform advocates can learn from the gun-rights and marriage-equality struggles, and focus on incremental progress at the state and local levels and in legal scholarship, they have a chance of not only altering constitutional law, but also restoring faith in the democratic process. “These victories help change the story about money in politics,” Donnelly said. “Maine, Connecticut, and New York City show that this state of affairs is not inevitable or inescapable.”

Even the boldest of gamblers might still hesitate to bet on campaign-finance reform. But not so long ago, they wouldn’t have bet on a constitutional right to marriage equality or gun ownership, either.