Overturn Citizens United and Restore a Pro-Democracy View of the Constitution
The Brennan Center’s Democracy Agenda outlines a series of concrete proposals that the next President and Congress should embrace to improve democracy in America.
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The wealthy interests that dominate elections have the Supreme Court to thank for clearing the way. After Congress sought to reform the campaign finance system in the 1970s, the foundational decision in Buckley v. Valeo established a confusing and ultimately contradictory approach. The Buckley court concluded that fighting corruption was the only legitimate basis for any campaign finance regulation — not promoting effective elections or political equality. Contributions could be limited, the justices ruled, since they might be corrupt; but spending could not be curbed. In 2010, Citizens United went further. It struck down the longstanding ban on direct spending by corporations and unions in federal elections. Lower court rulings essentially lifted caps on individual spending as well.
Today, little remains of the edifice of campaign finance law. These rulings are not longstanding, however, they came only in the past decade, after Samuel Alito replaced Sandra Day O’Connor on the Supreme Court. And the doctrine is not widely embraced: all these rulings were 5-4.
While innovative reforms are possible now, many of the problems created by Citizens United and other cases cannot be solved without a new jurisprudence that recognizes the importance of campaign finance rules to a well-functioning democracy.
The next president should nominate, and the Senate should confirm, justices who understand that the First Amendment should serve as a tool to improve democracy, not a blunt instrument to thwart measured reform.
The Court must go beyond reversal of the widely derided Citizens United decision. As the Brennan Center has urged over two decades, the Court should overturn Buckley v. Valeo with its misguided tunnel-vision view of the values at stake in campaign finance regulation. Fighting corruption remains critical (especially if corruption is understood to embrace the ways that big money distorts governance). But that is hardly the only democratic value at stake. As the four dissenters in the McCutcheon case noted, the democratically accountable branches must have the ability to enact reasonable rules to uphold “the integrity of the electoral process,” an integrity the First Amendment was designed to protect. “The First Amendment advances not only the individual’s right to engage in political speech,” Justice Stephen Breyer wrote, “but also the public’s interest in preserving a democratic order in which collected speech matters.”
This includes corruption, of course, but it also includes equal access to power and the chance to compete. Massive contributions weaken the link between public opinion and political action by making public opinion harder to hear. Recognizing that the Constitution protects the public’s ability as a whole to make their views known could reverse the last decade of Supreme Court jurisprudence.
Why This Can Be Achieved
There are few issues in the last decade on which the Court has been so consistently, bitterly and closely divided. Four justices on the Supreme Court strongly disagree with the majority’s cramped vision of our Constitution and democracy. Justice Ginsburg recently echoed the opinion of most Americans when she decried “what has happened to elections in the United States and the huge amount of money it takes to run for office.” She argued that eventually, “sensible restrictions” on campaign finance will again be in place because “[t]he true symbol of the United States is not the eagle, it’s the pendulum — when it swings too far in one direction, it will swing back.”
On the Court, that swing back could begin in earnest when a single new or existing justice adopts the approach and ideas of four current members. With four sitting justices currently between the ages of 76 and 82, whoever is elected president in 2016 will likely have the chance to choose at least one new Supreme Court justice. A new justice or justices could make all the difference and allow the American people to institute reasonable campaign finance rules.
- Rethinking Campaign Finance: Toward a Pro-Democracy Jurisprudence: An overview of the most promising alternative interpretations of the Constitution for regulating money in politics.
- Money in Politics: Toward a New Jurisprudence: A regularly updated webpage dedicated to the ongoing discussion about new constitutional doctrine for governing money in elections.
- The Distillery Blog: This money in politics digest provides a periodic look at the latest legal research about the role of money in politics.
- Citizens United Five Years Later: Examines how the wealthy have been the biggest beneficiaries of the Citizens United decision — driving huge increases in spending by super PACs and dark money groups.
 McCutcheon v. FEC, 134 S.Ct. 1434, 1468 (2014) (Breyer, J., dissenting).
 Id. at 1467.
 Adam Liptak, First Draft, Justice Ginsburg Discusses Disappointment and the Notorious B.I.G., N.Y. Times, July 30, 2015, http://www.nytimes.com/politics/first-draft/2015/07/30/.
 Amanda Holpuch, Ruth Bader Ginsburg: I Would Overturn Supreme Court’s Citizens United Ruling, The Guardian, Feb. 4, 2015, http://www.theguardian.com/law/2015/feb/04/ruth-bader-ginsburg-supreme-court-citizens-united.