Five to Four

January 13, 2016

Six closely divided decisions by the Roberts Supreme Court have transformed the landscape of campaign finance in America, largely for the worse, in areas like election spending, transparency, and the voice of ordinary Americans in the political process.

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Super PACs. Dark Money. Multi-million dollar contributions. Unlimited corporate and union spending.
For many Americans these may seem like fundamental, if unfortunate, aspects of American elections. But the truth is that all of these things are very recent phenomena. Only a few years ago, there were no federal super PACs. The term “dark money” — spending by groups that hide the identity of their donors — had not been coined, because it was virtually non-existent. Corporations and unions were strictly limited in how they could spend in federal elections. Super-wealthy individuals could not donate millions to federal candidates and parties in a single election, because there were aggregate limits on contributions.
All of these new developments, and more that most Americans decry, can be directly or indirectly traced to just a few Supreme Court decisions issued in the last decade, each decided by a single vote. Four of nine justices strongly disagreed with these decisions, and if one more justice had joined them, our ability to regulate big money in politics, and to give ordinary Americans more of a voice in the political process, would be very different today.
In other words, the last few years of campaign financing are not “normal,” or “inevitable,” or “just the way things are.” To the contrary, in the modern era, they are the aberrant result of a single swing vote on the Supreme Court, which upended decades of carefully crafted campaign finance law, and they can be reversed.
This paper details how six closely divided Supreme Court decisions in the last decade contributed to some of the most disturbing trends in American elections. It also shows how a new approach by just one Supreme Court justice could once again allow for commonsense regulations that ensure all Americans have a voice in the political process, and that a more representative, diverse group of candidates could competitively run for office without the support of a few super wealthy donors.