Hillary Clinton told supporters on Thursday that if elected she will appoint Supreme Court justices who would overturn Citizens United, according to a Washington Post report. This is good news for our democracy—but the Court’s role in helping wealthy interests dominate politics goes far deeper than one bad case.
In fact, justices appointed by the next president—whoever that is—should look to transform the Supreme Court’s entire approach to money in politics going back to cases starting in the 1970s, just as the Court has reversed course on New Deal economic protections, racial segregation, LGBT rights, and more.
Secretary Clinton and Senator Bernie Sanders—who last week outlined a similar requirement for future justices—should be applauded for recognizing the damage Citizens United has done, even as they campaign in the broken system the Roberts Court has created. Our democracy has descended into a shouting match between billionaires and corporate interests, who have more tools than ever to drown out the rest of our voices.
But the reality is that Citizens United merely added fuel to an already blazing fire—and returning to the “glory days” before the decision will not create an America where we all have an equal say over the government decisions that affect our lives.
There are two reasons for this. First, many of the unlimited contributions driving the sharp rise in “outside spending” have come from wealthy individuals rather than corporate treasuries. Casino magnate Sheldon Adelson and his wife Miriam, for example, gave more than $92 million to Super PACs in the 2012 cycle. But, because of flawed Supreme Court decisions long before Citizens United, they would still be allowed to spend every cent of that money even if Citizens United is overturned, as long as they spend it themselves instead of by contributing to a political committee.
Moreover, money in politics has long played a profound—and unseen—role in shaping the field of candidates. A narrow band of wealthy donors acted as gatekeepers to public power well before Citizens United and would continue to do so if just that decision is reversed. We’re seeing this now, as presidential hopefuls compete for donor support before even officially declaring as candidates.
But it’s just as prevalent in filtering the candidate pool in races for Congress or state house. Candidates for U.S. Senate, for example, need to raise $3,300 every day for six years just to keep pace with their rivals—and typically get the majority of that money in contributions of at least $1000 from a fraction of one percent of the population.
This “wealth primary” is a big reason why elected officials across the country are much whiter and wealthier than our population, and sharply more responsive to the priorities of the “donor class.”
The Supreme Court is largely to blame. Since a 1976 case called Buckley v. Valeo—sometimes called the “original sin” of campaign finance law—the justices have said that we are not allowed to fight this problem directly because leveling the playing field between wealthy donors and the rest of us is not a legitimate reason to limit big money. Rather, We the People can only seek to eliminate corruption or its appearance. The Roberts Court has doubled down on this idea by limiting the definition of corruption to quid pro quo bribery.
This is the logic behind Citizens United—but also behind previous cases that have shredded other democratic safeguards. It’s why we can’t limit the direct spending of billionaires like Sheldon Adelson, prevent wealthy candidates from spending their way into elected office, or put a cap on overall spending on campaigns by candidates or outside interests.
But preventing the wealthy from translating economic might directly into political power is a profound concern for a democracy that aims for an equal voice for all of its citizens, but tolerates considerable economic inequality.
We need the next generation of democracy-friendly justices to not just overturn Citizens United, but revisit Buckley, which is also the case that gave us the dubious principle that “money is speech.” More important, the Court needs to consider a broader set of values, beyond just clean governance, as compelling reasons to limit big money: from guaranteeing all Americans the opportunity for an equal voice in the political process to promoting government that’s accountable to voters, not just a few wealthy donors.
The ultimate goal should be an America where the strength of a citizen’s voice does not depend upon the size of her wallet. Overturning Citizens United is an important step in that direction. But, to take a giant leap forward in our nation’s slow, halting drive towards truly equal citizenship for all, we’ll need to rethink what the Constitution really says about the power of the People to protect our democracy.
This broader transformation, not just overturning one bad case, should be a top priority for Hillary Clinton, Bernie Sanders, or anyone else seeking the power to appoint our future justices.
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