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Expert Brief

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

In the last decade, the Supreme Court has issued a series of 5–4 decisions that eviscerated existing campaign finance law. We examine a number of assumptions and assertions the Justices used to justify their decisions, and the post-decision record that contradicts these assumptions.

Published: 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.