The Supreme Court’s Citizens United decision sparked an explosion of big money in American politics. This Court has shown no interest in revisiting this decision, but a strategy that helped antiabortion activists in their quest to overturn Roe v. Wade could also work for campaign finance reform: enacting state trigger laws that directly challenge the legitimacy of the Court’s decision.
Despite being unpopular, ahistorical, antidemocratic, and wrong, the Supreme Court’s ruling that the First Amendment protects the right of wealthy individuals and corporations to spend unlimited money on elections is now deeply entrenched in the American legal landscape.
But that doesn’t mean states have to accept the decision without protest. There are a variety of ways lawmakers can respond, including legislative efforts to immediately cabin the effects of Citizens United within existing legal doctrine. Efforts to directly challenge the legitimacy of the decision are also crucially important. And on that front, there is a currently underutilized tool states can use to build momentum for sweeping legal change: trigger laws. These are statutes that are designed to be unconstitutional under current court doctrine. They avoid being struck down, however, by attaching trigger clauses stating that the statutes take effect only after a change in constitutional law such that they would be upheld.
Overturning Citizens United and the Court’s other erroneous campaign finance rulings will likely take years of sustained effort. It will involve scholars, lawyers, activists, and federal officials working to fashion a new legal consensus. State legislatures, ballot initiatives, and referenda also have an important role to play by enacting trigger laws that forcefully oppose the Court’s jurisprudence.
History already shows how effective this approach can be. In particular, the antiabortion movement used trigger laws to great effect in their campaign to overturn Roe v. Wade. Decades ago, the antiabortion movement identified trigger laws as part of the “incremental strategy” to overturn Roe. By the time of the Dobbs decision ending federal protection for abortion, 13 states had trigger laws on the books — unconstitutional restrictions or prohibitions on abortion that could only take effect after Roe was struck down. Antiabortion strategists credited these trigger laws with “creating an environment that reveals a growing political will to” overturn Roe. And indeed, in Dobbs, the Supreme Court cited the existence of state laws challenging Roe as a reason to abandon settled precedent and overturn that case.
Because trigger laws are not operative when they are passed, they are insulated from judicial review. In this way, they challenge legal doctrine without giving courts the opportunity to strike them down and potentially create even worse law. They are an important complement to other methods of challenging Citizens United because they give lawmakers freedom to envision a campaign finance system free from the constraints of current legal doctrine. As official enactments of state governments, they send a more permanent and enduring signal than political speeches, protest marches, and other forms of popular dissent. And because these statements generally get more respect in court, they have the potential to pay dividends in future legal fights.
Citizens United is far from the only mistaken campaign finance decision on the books. The Court’s 2014 decision in McCutcheon v. FEC, for instance, invalidated a bipartisan law that capped the aggregate amount an individual could contribute to federal candidates in a single election cycle. In 2011, Arizona Free Enterprise Club’s Freedom PAC v. Bennett struck down a key part of Arizona’s Clean Elections law, which voters enacted to help candidates run competitive campaigns without relying on megadonors. And in its 1976 holding in Buckley v. Valeo, the Court ruled that the only valid reason to regulate campaign finance is to prevent quid pro quo corruption and its appearance — meaning other important goals like promoting political equality are off limits.
Pro-democracy state legislators should be ambitious in challenging these other wrongly decided cases as they draft trigger laws that push back on the Supreme Court’s erroneous campaign finance jurisprudence. By taking on this entire body of precedent, trigger laws advance the best reading of the First Amendment as protecting the right of everyone, not just the wealthy few, to participate in our democracy.
One of the most important features of these trigger laws will be their explanatory provisions, found in preambles, statements of purpose, or legislative findings and intent. In these sections, state legislators will assess not just that the Supreme Court is wrong, they will explain why the Court is wrong. Here is where state lawmakers will create the factual record demonstrating that Citizens United has undermined democracy by unleashing unlimited political spending by super PACs and enabling the wealthiest megadonors to dominate politics and drown out the voices of everyday voters. Here is where they will push back on the Supreme Court’s naïve (or cynical) assertion that paying for “access” to politicians is not corruption and does not undermine faith in democracy.
Citizens United and the Court’s other campaign finance cases were wrongly decided. Lamentably, with this Supreme Court unlikely to revisit its jurisprudence in the near term, this argument has little chance of success in litigation. But that doesn’t mean we shouldn’t make the argument. Popular campaigns to change constitutional law take a long time, but when they are done right — and when the people stick with them — they work.
By passing trigger laws, state legislators will take a decisive step on the long path to overturning Citizens United.
