Fact Check: What the Supreme Court Got Wrong in its Money in Politics Decisions

January 30, 2017

In the last decade, the Supreme Court has issued a series of 5-4 decisions that eviscerated previously existing campaign finance law, and led to such despised phenomena as super PACs, “dark money” spending, and unlimited corporate and union expenditures. None of these developments were predicted by the Justices as they struck down one law after another.

But the Justices did make other predictions. And those have not aged well. Below we examine a number of assumptions and assertions the Justices used to justify their decisions to strike down campaign finance laws, as well as the post-decision record that frequently contradicts these assumptions. An honest examination of this record should permit the Court to reconsider these decisions and allow Americans to take back their democracy in a way that is consistent with the Constitution’s true meaning, which allows for reasonable regulation of big money in politics.

Can independent expenditures corrupt officeholders?

In a 5-4 vote, the Court struck down limits on the amount that corporations and unions could spend in federal elections on so called “independent expenditures,” on the grounds that such spending could not corrupt officeholders, and would not cause Americans to lose faith in our democracy.

Can disclosure of political spending replace limits on spending as a means to prevent corruption?

5-4 majorities have argued that disclosure of political spending would adequately address corruption concerns raised by the Court’s decisions to strike down contribution and spending limits.

Do aggregate limits on individuals’ political contributions prevent corruption?

A 5-4 majority argued that aggregate limits on the amount an individual could contribute to parties, political committees and candidates combined per election cycle should not stand because contributions to parties and political committees could not be used to corrupt candidates, and would not appear to corrupt candidates.

Do “trigger matching” provisions in public financing systems chill free speech?

A 5-4 majority struck down a “trigger matching” provision which provided candidates running under Arizona’s public financing system with extra money when an opponents or their supporters spent a certain amount of private money against them, on the grounds that such a provision would “chill” the speech of opponents.