Report: The Roberts Court’s Five Campaign Finance Reversals
By Justin Miller | Jan 15, 2016
By now, everyone knows about Citizens United and the flood of unlimited outside spending ushered in by that infamous Supreme Court decision. But that ruling is just one of five major Roberts Court decisions that have completely reshaped the campaign-finance landscape over the past decade, concludes a new report from the Brennan Center for Justice at New York University’s School of Law.
By equating money with free speech and imposing an archaic legal interpretation of corruption, the Roberts Court has introduced an era of unlimited outside spending, undisclosed “dark” money, and disproportionate influence on candidates and parties by wealthy benefactors, the report finds. All this has come at the expense of everyday citizen participation, according to the Brennan Center.
Titled simply “Five to Four,” the report identifies five rulings—all narrowly decided by a 5-4 margin—that have unleashed the influence of private money:
Citizens United v. FEC and SpeechNow.org v. FEC (2010)
The 2010 Citizens United decision laid the groundwork for the creation of independent outside-spending groups—now largely known as super PACs—because the court majority concluded that independent election spending from non-candidate groups does “not give rise to corruption or the appearance of corruption.”
The real floodgate of unlimited money didn’t come until a couple months later when a lower court ruled in SpeechNow that, based on Citizens United’s assertion that independent expenditures can’t corrupt, there is no legal justification for limiting contributions that underwrite outside spending. The first post-Citizens United presidential election saw an influx of $600 million in super PAC spending, and the 2016 election is on pace to vastly exceed that amount.
FEC v. Wisconsin Right to Life, Inc. (2007)
Roberts’s controlling opinion in Wisconsin Right to Life found that it was unconstitutional to ban corporate electioneering activity that was “issue advocacy,” not “express advocacy” for or against certain candidate. This gave outside groups the opportunity to run thinly veiled “issue ads” that could easily be read as implicit support or opposition of a candidate.
From there, outside groups argued that they shouldn’t have to register as political committees (and thus, be subject to disclosure laws) so long as they don’t spend more than 50 percent on “express advocacy.” This has given rise to a rash of so-called “social welfare” groups spending heaps of undisclosed money—$310 million in 2012 alone—on “issue ads” that reformers contest support or oppose a candidate in an implicit way.
McCutcheon v. FEC (2014)
Prior to 2014, donors had faced an overall cap of about $123,000 on how much they could contribute to federal candidates and parties combined in a given election cycle. But, in McCutcheon v. FEC, the court ruled that such contribution limits were constitutional only to prevent “quid pro quo” corruption. This freed wealthy donors to contribute tens of millions more to candidates, parties, and PACs in the 2014 election than they would have previously been able to. Since McCutcheon, wealthy donors have been given even more ways to dump big money into elections.
Davis v. FEC (2008)
In an attempt to lessen the advantage of wealthy self-financed candidates, Congress included in its 2002 campaign-finance overhaul, the Bipartisan Campaign Reform Act, a “millionaires’ amendment” that allowed any candidate running against a high-spending, self-financed opponent to solicit donations larger than the contribution limits.
But in 2008, the Court ruled in Davis that the “millionaires” provision was unconstitutional because it punished self-financed candidates for exercising their First Amendment right to spend as much of their own money as they pleased. In 2014, at least 24 congressional candidates pumped $1 million of their own money into their campaigns.
Arizona Free Enterprise Club v. Bennett (2011)
The standard set by Davis in 2008 paved the way for a series of lower court rulings that weakened certain states’ public campaign-finance systems. In 2011, the Supreme Court took up Arizona Free Enterprise, which addressed the constitutionality of so-called trigger funds that gave publicly financed candidates an extra funding boost if they were running against a big-spending opponent who had opted out of public funding.
The Roberts Court, again, ruled the trigger mechanism unconstitutional on the grounds that it curtailed the First Amendment rights of privately financed candidates. The decision struck a huge blow to the functionality of a number of state public finance systems around the nation.
As the report concludes, just a one-member shift on the bench “could permit Americans to take back their democracy in a way that is more consistent with the Constitution’s true meaning, which allows for reasonable regulation of big money in politics.”