The next Supreme Court justice—whether nominated by President Barack Obama, another Democratic president, or even a President Donald Trump—is likely to move the Supreme Court substantially to the left on a host of issues, particularly in the realm of campaign finance. But the results may still be disappointing to progressives.
Campaign finance has divided the Court ever since the first such case, United States v. Newberry (1921), spawned four opinions. Nearly a century later, little has changed. While about 40 percent of the Court’s decisions overall are unanimous, the same is not at all true when it comes to campaign-finance cases. Since the landmark 1976 campaign-finance decision in Buckley v. Valeo, the Court has decided 20 cases challenging limits on campaign spending and contributions and only two have been unanimous. The last six, including Citizens United v. Federal Election Commission, were decided 5-4.
The divisions between the justices run deep. To the Court’s progressives, unrestrained political spending is a threat to American democracy that the government must regulate. To the conservatives, spending money to promote political change and discourse is a core part of the First Amendment, the essence of which is that government cannot be trusted to regulate political speech.
In Buckley, the Court compromised. Buckley held that legislatures could regulate contributions to candidates and parties but could not limit political spending, whether by candidates or by individuals and groups acting independently of candidates. Buckley did not address spending by corporations. In 1990, however, over a stinging dissent by Justice Antonin Scalia, the Court in Austin v. Michigan Chamber of Commerce voted 6-3 to uphold a Michigan statute prohibiting corporations from making expenditures in political races.
By the late 1990s, the Buckley compromise had begun to fray. In a string of divided decisions, from 2000 through 2003, the Court deferred to legislative regulation of political contributions and spending. Though those decisions purported to follow Buckley, conservatives believed that they strayed far from Buckley’s rationale. The appointment of Chief Justice John Roberts and Justice Samuel Alito to the Court, however, flipped the majority. Since then, major cases striking down campaign-finance laws have included McCutcheon v. Federal Election Commission, holding aggregate caps on contributions to candidates unconstitutional; Arizona Free Enterprise Club v. Bennett, striking down government financing systems that award funds unequally based on private fundraising and outside spending; and finally Citizens United, which overruled Austin and struck down limits on corporate political spending.
President Obama has been a vocal critic of Citizens United and presumably is confident that his nominee, Judge Merrick Garland, would vote to overturn the ruling. Bernie Sanders and Hillary Clinton have each vowed that opposition to Citizens United will be a litmus test for Supreme Court nominees. And even Trump—whose “self-funded” campaign is a hallmark of his appeal—regularly expresses support for campaign-finance reform. So a new ideological majority could soon control the Court.
That Citizens United will go at the first opportunity is apparent from American Tradition Partnership v. Bullock, decided two years after Citizens United. In American Tradition Partnership, the Montana Supreme Court held, in essence, that the First Amendment principles underlying Citizens United did not apply in Montana, because Montana is a uniquely corrupt state. (If that doesn’t strike you as a problematic position, imagine a state court holding that Roe v. Wade shouldn’t apply because abortion is a particular problem in that state). The Supreme Court summarily reversed the Montana Supreme Court.
Notable, however, was that the Supreme Court’s progressive wing dissented not merely from the judgment, but from the grant of certiorari itself, because there was no “significant possibility of reconsideration” of Citizens United by the majority. The Court’s progressive wing, lacking the votes to overturn the Citizens United precedent, would not even concede that the decision, until overruled, should be enforced.
So Citizens United appears to be a goner at the first opportunity. But how much difference will that make? Much less than people think.
First, the vast majority of political money in the United States still comes from individuals. Corporate and union spending remains below 10 percent of total political spending in the United States.
Second, overruling Citizens United will not automatically eliminate super PACs. Constitutional protection for super PACs hinges not on Citizens United but on SpeechNow.org v. Federal Election Commission, a unanimous decision by the U.S. Court of Appeals for the D.C. Circuit (which included Garland). Though the opinion in Speechnow.org cited Citizens United, the plaintiffs actually based their case—briefed before Citizens United was decided—on older Supreme Court cases, including Buckley. So Speechnow.org could survive even if Citizens United were overturned.
And even if Speechnow.org itself were reversed along with Citizens United, corporations (and unions) would remain free to spend on ads intended to sway the public on issues. And pursuant to Buckley, more than 60 days before the general election or 30 days before a primary, such ads can discuss candidates as well as issues, so long as they refrain from “expressly advocating” that voters support or defeat any particular candidate. So while overturning Citizens United, and even Speechnow.org, would mark a significant change in Court doctrine, it wouldn’t do all that much to alter campaigns. Both cases were only decided in 2010. Does anyone think money didn’t matter in campaigns before 2010?
In addition to Citizens United, a progressive Court majority would likely, at the earliest opportunity, reverse McCutcheon and Bennett. But McCutcheon affects only a small number of very wealthy donors, who could simply shift their efforts to independent spending, where it is harder to track. Reversing Bennett would assist legislators in designing government financing systems for campaigns, but the reality is that they have experimented with government financing systems nationally and in the states for decades, and they have never proved very effective, nor very popular with the public.
The question, then, is: Would the Court go further and overturn Buckley’s protection of independent expenditures and of ads that do not “expressly advocate” for the election or defeat of a candidate. Buckley has now been the campaign-finance lodestar for more than 40 years. Would a new, progressive majority overturn that precedent?
Though none have explicitly said they would do it, assume that Justices Ruth Bader Ginsberg, Sonia Sotomayor, Elena Kagan, and any newly appointed justice would in fact be prepared to overrule Buckley and vote to uphold spending limits. Then what? At that point, the issue would depend on Justice Stephen Breyer. Assuming that he, too, would agree that spending limits should be constitutional, he would still need to overturn the Buckley precedent.
In a 2006 decision striking down a Vermont law that limited spending by candidates and parties, Breyer wrote: “Subsequent case law has not made Buckley a legal anomaly or otherwise undermined its basic legal principles… And we do not perceive the strong justification that would be necessary to warrant overruling so well established a precedent.”
Of course, the progressives on the Court clearly feel that the conservatives overreached in Citizens United, deciding issues not properly before the Court. So Breyer may feel freer to upend the Buckley precedent. In his brief dissent from the grant of certiorari in American Tradition Partnership, he wrote, “[I disagree] that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Was he suggesting that all independent expenditures might be subject to government limitation, placing him at odds with Buckley, or just those by corporations, placing him at odds only with Citizens United? It’s unclear.
All of this begs a final question: If Citizens United, Speechnow.org, and even Buckley were swept away, how happy would progressives be? In the last campaign-finance case before Buckley, United States v. United Auto Workers (1957), it was the Court’s liberals—Justices William O. Douglas, Earl Warren, and Hugo Black—who argued that regulation was unconstitutional, writing, “It is … important—vitally important—that all channels of communication be open to [the people] during every election, that no point of view be restrained or barred.”
Many Republicans would love to see more restrictions on political activity by unions and progressive advocacy groups. Congress is unlikely to pass any new campaign-finance laws so long as Republicans retain control either house of Congress. But Republicans control a substantial majority of state legislatures, and that is likely to continue even if Democrats score a big presidential win in 2016. Further, a 2016 Democratic presidential win could presage more Republican gains in the 2018 elections.
These conservative legislatures are not likely to pass laws limiting political players and activities favoring conservatives; they are more likely to pass laws limiting progressive political influence. Progressives might not like the campaign-finance legislation those legislatures, given new latitude to regulate in a post-Citizens United, post-Buckley world, would produce.
While a new justice on the Supreme Court may dramatically alter the Supreme Court’s campaign-finance jurisprudence, the issue isn’t actually going anywhere.
This article is part of “Confirmations: The Battle Over the Constitution,” a partnership with the National Constitution Center.
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