Cross-posted from The Hill.
Since Justice Scalia’s death, many have asked what a new ninth justice might mean for campaign finance law. The shorthand for this was often “Citizens United.” Could it be overturned?
During his confirmation hearings, Senators may try to get a sense of where Judge Neil M. Gorsuch, who was nominated to replace Justice Scalia by President Trump Tuesday, will come down on this question.
There is little chance he will answer directly. Recent nominees have avoided saying much about controversial legal issues, arguing that doing so could compromise the independence of the judiciary.
A potentially more fruitful line of questioning would center on his willingness to consider new evidence when assessing past precedent. If he (and, for that matter, the rest of the court) assess the post-decision record of Citizens United and other money in politics decisions fairly, they will be forced to reconsider these flawed decisions.
Citizens United was one of a series of bitterly divided 5-to-4 decisions dating back to 2007 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. For instance, in Citizens United, five justices 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 “give rise to corruption.”
They further argued that “the appearance of access and influence” that came from such spending would “not cause the electorate to lose faith in our democracy.” The logic, while dubious to many, could be defended. "By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate,” and so could not possibly implicate quid pro quo corruption concerns.
In practice, however, this reasoning looks dangerously wrong. The post-Citizens United era has seen rampant collaboration between nominally “independent” groups and candidates and parties, undermining longstanding anticorruption measures like contribution limits to candidates.
These groups—super PACs and political non-profits — receive and spend hundreds of millions of dollars in excess of what any single candidate could directly receive, while frequently being run by former top staff of candidates or parties.
To take just one example, in 2016, the supposedly “independent” Republicans’ Senate Leadership Fund spent $114 million and the Democrats’ Senate Majority Fund spent $75 million.
Each group was run by former top aides of party leaders in the Senate. Meanwhile, candidates routinely attend fundraisers organized by their “buddy PACs” — groups that can take unlimited contributions as a result of their “independent” legal status, and are often established, funded, and/or run by a candidate’s former staff, consultants, other close associates, or even family.
In 2016, more than 40 percent of super PAC spending, or $486 million, came from candidate-specific super PACs, which are typically run by the candidates’ former staffers.
Given these facts, it is hardly surprising that the public understands unlimited contributions to Super PACs and other nominally independent groups can, in fact, lead to corruption. Nor is it surprising that their confidence in our democracy has been shaken. It is surely no accident that in 2016, the most successful candidates often bemoaned the influence that Super PACs and other big spenders had over our political system.
Assumptions and predictions found in other deeply divided money in politics decisions — such as McCutcheon v. FEC and Arizona Free Enterprise v. Bennett — have fared just as poorly.
The court has repeatedly asserted that the anti-corruption purposes of spending restrictions they struck down could be satisfied by disclosure of the sources behind political spending. Ironically, these decisions helped lead to an unprecedented era of “dark money” political spending by outside spending groups that hide the identities of their donors, and make it far more difficult for the public to hold their elected officials accountable.
Similarly, the court has done tremendous damage to public financing systems around the country by striking down a “trigger matching” provision in Arizona Free Enterprise. This provision gave candidates running under the Arizona’s public financing system extra money when opponents or their supporters spent a certain amount of private money against them.
The court’s rationale was that the trigger provision would “chill” the speech of opponents, making them reluctant to spend for fear of triggering a matching grant. But a comprehensive 2012 study applying multiple statistical tests to spending levels under the trigger laws in Arizona and Maine (which had a similar provision) found no evidence of a chilling effect.
Meanwhile, since the trigger provision was struck down, participation in the Arizona’s public financing system has been cut by more than half, and other public financing systems that relied on triggers around the country have begun to fail.
There is nothing in Judge Gorsuch’s record to suggest that he is hostile to recent Supreme Court money in politics decisions. If anything, there is some evidence that he thinks the court could go further in rolling back campaign finance restrictions.
Regardless of his pre-existing views, or those of other members of the court, at some point it should be necessary to compare the evidence of what has happened to what the court assumed and predicted when issuing these opinions.
A Supreme Court that does so will be forced to concede that many of those decisions are built on a foundation of sand, and need to be reconsidered.