Recent history suggests a more reliable means of constitutional change. A quarter century ago, the idea that gay and lesbian couples had a constitutional right to marry was at least as far-fetched as campaign-finance reform has seemed in recent years. And in 1991, former Chief Justice Warren Burger dismissed as fraudulent the notion that the Second Amendment protects an individual right to bear arms. But in 2008, in District of Columbia v. Heller, the Supreme Court recognized an individual right to bear arms, overturning almost 70 years of settled law. And in 2015, the Court declared in Obergefell v. Hodges that gay and lesbian couples have a right to marry. Both changes came about gradually, through decades of work by citizens’ groups—such as Freedom to Marry and the National Rifle Association—committed to an alternative constitutional vision.
If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbooks.
The place to start the fight against Citizens United is not the Supreme Court, or even Washington, D.C., but the hinterlands. When federal constitutional law is against you, you must look for alternative forums in which to press your case. And as with guns and family relations, most of the laws regarding elections are made by the states.
Both gun-rights and marriage-equality advocates began their campaigns in the states most sympathetic to their cause—Florida for the NRA, Vermont and Massachusetts for marriage-equality activists—and then sought to export favorable precedents across state lines. The NRA sought to expand gun-rights provisions in state constitutions, while pressing for legislation that protected the right to carry concealed weapons and insulated gun manufacturers from liability for injuries caused by their products. Gay-rights groups championed parental rights, nondiscrimination ordinances, and modest domestic-partnership benefits for gays and lesbians. By the time the Supreme Court recognized a right to bear arms, most state constitutions had already done so, and by the time the Court declared that gay and lesbian couples had a federal right to marry, 37 states and the District of Columbia had recognized same-sex marriage.
Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones. And by making realistic amounts of public financing available, the reforms have made it possible for a wider range of candidates—including, so far, waitresses, teachers, and a convenience-store clerk—to run for office and win.