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Five to Four

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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Intro­duc­tion

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.