How Scalia’s Death Could Shake Up Campaign Finance – POLITICO Magazine
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Campaign finance reform has been a hot topic on the 2016 campaign trail, more than in any campaign I can remember. It seems like every answer Democratic candidate Bernie Sanders gives begins with a nod to the “corrupt campaign finance system.” Hillary Clinton, too, made campaign finance reform one of the four pillars of her campaign. And even Republican Donald Trump has labeled free-spending Super PACs “a scam” and called on other candidates to disavow them. Meanwhile, President Barack Obama continues to demand changes to our campaign finance system. He said in Illinois just last week that “a handful of families and hidden interests shouldn’t be able to bankroll elections in the greatest democracy on Earth.”
It might be that these determined campaign finance reformers like me just got the opening they need.
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The death of Supreme Court Justice Antonin Scalia will have important ramifications on national issues from abortion to affirmative action to climate change to gun rights. But first and foremost, the decision could bring an end, at least for a time, to one of the country’s most hated decisions, Citizens United v. Federal Election Commission. Maybe, at least for a while, the courts will stop our elections from becoming increasingly bankrolled by the super-wealthy.
Almost all of the important campaign finance decisions for a generation have been decided by a 5-4 majority on the Supreme Court. In some periods, the Court has been narrowly in favor of limits. More recently, the pendulum has swung to an absolutist view of the First Amendment, which sees most limits on money in politics as obstructions of free speech and thus unconstitutional.
Scalia had been in the thick of the campaign finance battle for decades.
His opposition to limits began in 1990, when Scalia dissented from a Supreme Court decision, Austin v. Michigan Chamber of Commerce, allowing limits on how corporations can spend money in elections. He called the decision requiring corporations to use a political action committee for election ads “Orwellian,” and for the next 25 years he dissented and fought against Supreme Court decisions that allowed sensible limits on money in politics. Scalia finally got his way in the 2010 Citizens United case, which overturned Austin in a 5-4 decision and ushered in our current era—in which unlimited, and frequently undisclosed, money has begun to take over our politics.
How did Scalia eventually get his way on the question of how to balance First Amendment rights of free speech against strong government interests like preventing corruption or promoting political equality? It was not through a formal constitutional amendment, which would have required a supermajority vote in Congress and approval by three-fourths of the states. Instead, in 2006, the meaning of the Constitution changed in 2006 when Justice Sandra Day O’Connor, the crucial fifth vote to uphold reasonable campaign finance limits, retired and was replaced by Justice Samuel Alito. Alito, like Scalia, has never voted in favor of a campaign finance limit in his 10 years on the Court.
And just as the meaning of the Constitution turned on a dime with Alito’s confirmation, there are three ways it can do so again to allow reasonable limits on campaign money.
First, Obama nominates a new justice who gets Senate approval. The president has said he will nominate someone to replace Scalia. Anyone the president nominates, if confirmed, will likely vote the way his past nominees, Justices Sonia Sotomayor and Elena Kagan, have voted: in favor of reasonable limits.
Second, states challenge Citizens United before a new justice is confirmed. If Obama’s nominees are blocked (Senate Majority leader Mitch McConnell has already said he does not think there should be a confirmation in Obama’s remaining months), all is not lost. A brave federal circuit court or state Supreme Court might do what the Montana Supreme Court did soon after Citizens United: uphold corporate spending limits in state elections. The Supreme Court in a short opinion on a 5-4 vote smacked down the Montana Supreme Court, but it could not do the same today. A 4-4 tie in the Supreme Court keeps the lower court opinion in place, and that could, at least in some states, restore us to the pre-Citizens United era.
Third, the country elects a Democratic president—or maybe Trump. Campaign finance is an issue in the presidential election like it has never been before. Democratic candidates Clinton and Sanders have said overruling Citizens United will be a litmus test for their appointees to the Court. You can bet future Supreme Court nominees of Democratic presidents will be vetted closely on this issue.
Even Republican frontrunner Donald Trump, who has railed against the pernicious role of money in politics, could well appoint a justice who would vote with the four Citizens United dissenters to overturn decisions that have led to a situation where, as Politico recently reported, “the 100 biggest donors of 2016 cycle have spent $195 million trying to influence the presidential election—more than the $155 million spent by the 2 million smallest donors combined.”
Now none of this is a sure thing.
To begin with, a President Ted Cruz or a President Jeb Bush would be looking to name another Scalia to the Court. In that case, there is no plausible path in the near term to overturning Citizens United.
Second, just look at the ages of the sitting Justices. The next president could well have three more appointees to the Supreme Court (not counting the Scalia appointment). So it is possible that even with a liberal Obama replacement for Scalia, the pendulum swings back and forth on these issues rather rapidly as various justices leave the Court.
And third, and perhaps most importantly, Supreme Court justices of whatever stripe are reluctant to easily overturn precedent, and lower court judges will be reluctant to artfully attempt to find ways to get around Citizens United. It does not look good for Supreme Court precedent to swing like a pendulum, or for lower court judges to ignore Supreme Court rulings, making the boundary between law and politics look ever more porous.
But future liberal justices should take their cue from Scalia. For 25 years he did not accept the precedent upholding limits on money in politics. He kept dissenting till he got his way. Let’s hope that in this narrow window for change, liberal justices will follow Scalia’s example.
How Scalia’s Death Could Shake Up Campaign Finance – POLITICO Magazine}