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A democracy agenda for a post-Scalia Supreme Court

The unexpected death of the late Justice Antonin Scalia has opened a rare window of opportunity to undo the Supreme Court’s toxic anti-democracy decisions that have expanded the influence of wealthy political donors and undermined the principle of “one person, one vote.” It’s time for democracy advocates to move from defense to offense—in the courts.

In the notorious 2010 Citizens United v. FEC decision, a 5-4 Supreme Court overturned decades of precedent to rule that corporations and unions can spend unlimited amounts to influence our elections. Sen. John McCain (R-Ariz.) is not alone in considering Citizens United to be “the worst decision of the United States Supreme Court in the 21st century.” Poll after poll shows broad popular opposition to Citizens United and the big-money politics era that it unleashed, and growing cynicism that politicians of both parties are beholden to big donors. Unlike hot-button issues such as abortion, Obamacare, or same-sex marriage, public opposition to Citizens United cuts across partisan lines as probably the most despised Supreme Court decision of the modern era.

{mosads}And while Citizens United gets the headlines, other decisions have made matters even worse. The Court has further chipped away at federal and state campaign finance laws in areas such as overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular andbipartisan movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking on money in politics, corporations, and democracy.

Now, in the middle of an election season, we have the prospect of a once-in-a-generation change on the Supreme Court. The seeds of Citizens United were planted when, in a four-month span, the late Chief Justice Rehnquist and the retired Justice Sandra Day O’Connor—staunch Republicans, but fierce lower-case-d democrats who understood politics, the folly of treating corporations as if they were citizens, and the need for judicial restraint in the area of democratic self-government—were replaced by Chief Justice John Roberts and Justice Samuel Alito. Less than four years later, the Court issued Citizens UnitedLeading scholars now agree that Citizens United is in a group of “at-risk precedents” in the post-Scalia era. In the words of one expert, “just as the meaning of the Constitution turned on a dime with Alito’s confirmation,” the opening on the Court might well mean that campaign finance reformers “just got the opening they need.”

So where are the reformers in the face of this transformational opportunity? There are two camps.

Some advocate an incremental, go-slow approach. In the months to come, they argue, we should focus on the pipeline of cases that were already scheduled to come to the Supreme Court, and perhaps hope for favorable language from a four-justice bloc in tied decisions without any precedential value. In the medium term, they say, we should focus on filing supportive friend-of-the-court briefs when wealthy donors challenge existing campaign finance laws. And someday—not now or anytime soon, but all in due course in the fullness of time—we can discuss fundamental reform.

But others believe that now is the time to develop bold new initiatives, including test cases and game-changing affirmative impact litigation, that challenge the role of big money in politics.

The emerging pro-democracy litigation strategy has five key elements: end super PACs; get big money out of judicial elections; strengthen state and local “clean election” laws; overturn Citizens United; and overturn the 1976 Buckley v. Valeo decision that held that the wealthy have a constitutional right to spend unlimited amounts of money to influence our elections.

Super PACs exploit a loophole created by a lower court decision, v. FEC, that allows them to evade contribution limits and raise unlimited amounts of money from wealthy individual and corporate donors to spend in federal, state, and even local elections. The SpeechNow decision purported to apply Citizens United, but in fact moved well beyond what the Court had actually decided in that case. As Professor Laurence Tribe of Harvard Law School explainsSpeechNow is vulnerable to challenge, and “the U.S. Supreme Court does not care what the lower courts say.”

Getting big money out of state judicial elections is necessary because the constitutional guarantee of “due process of law” is violated when judges are the recipients or beneficiaries of political dollars that may affect how they resolve individual cases. According to Professor Erwin Chemerinsky, the Dean of the University of California, Irvine School of Law, solving this problem requires limits on political spending in judicial elections. And common-sense ideas to protect judicial impartiality by limiting the influence of money in judicial campaigns won twice in a row at the Supreme Court, even with Justice Scalia on the bench.

We must also address court cases that have hamstrung effective public campaign financing systems. State and local “clean elections” measures have taken off in recent years. But court decisions prevent these systems from providing public funding support for Congressional candidates, or “leveling up” to compete effectively with wealthy or outside-funded candidates. As a result, some voluntary public funding systems have experienced substantial decreases in the number of candidates volunteering to forgo private campaign funds.

Overturning these judicial decisions would be major victories. But we need to go further and overturn Citizens United itself. It’s true that Supreme Court justices typically prefer to proceed stepwise when confronting past precedent. Yet Citizens United itself proves this is no rule: in one fell swoop, the Court overruled years of precedent, including a decision on the exact same question that it had issued just seven years earlier. Through carefully constructed test cases, we can put corporate and union political spending on the defensive.

We also must correct a mistaken idea, exacerbated by Citizens United but tracing back to the Court’s 1976 Buckley decision, that the only legitimate reason to resist the influence of big money in our elections is fighting “corruption.” But the real issue is political equality: the “one person, one vote” principle is threatened when the tiny donor class of bankers and oil executives has more of a voice than average Americans, who have essentially zero influence on policy. Buckley’s misstep continues to hamper innovative state and local reforms.

The time to build a pipeline of test cases is now. Litigation can take years to develop and progress before it reaches the Supreme Court. When the pro-reform majority is ready, we need to have cases ready for them. This isn’t an abstract matter—people are suffering from the effects of plutocracy, in our walletsjustice systemenvironment, and even quality standards for children’s surgery. In the words of the Reverend Dr. Martin Luther King Jr., “[t]here comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair.”

We’re in a “constitutional moment,” an inflection point where business-as-usual gives way and a go-slow, incrementalist approach falls out of step with the times. Modest, low-hanging tweaks, such as improving disclosure laws, may be worthy policy objectives, but they won’t harness the tremendous popular hunger for fundamental change.

We have all the tools we need to move forward. We have years of scholarshiptheorizing, and amicus briefs, and a “jurisprudence in exile” of minority dissents that could easily turn into majority opinions. Most importantly, we have the wind of the public at our back. It’s time to take this fight to the courts.

Fein is legal director at Free Speech For People.


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