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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.

Published: February 4, 2016

Read our 2018 Demo­cracy report here.

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.

Proposal

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.[1] “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.”[2]

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.”[3] 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.”[4]

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.

Resources

Next: Elim­in­ate Secret, Unac­count­able Money

 


[1] McCutcheon v. FEC, 134 S.Ct. 1434, 1468 (2014) (Breyer, J., dissent­ing).

[2] Id. at 1467.

[3] 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/.

[4] 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.