Few Supreme Court opinions have been as controversial as Citizens United v. Federal Election Commission, the 2010 decision that struck down limits on corporations’ campaign expenditures, finding them to be an abridgment of free speech. Like most of the Court’s recent campaign-finance rulings, the case was decided 5–4, with Justice Antonin Scalia in the majority. Even before Scalia’s death, Citizens United featured significantly in the presidential primaries. Bernie Sanders had made its negation, through a constitutional amendment, a key goal of—and rationale for—his candidacy. Both Donald Trump and Hillary Clinton had condemned the existing campaign-finance system, and Clinton had vowed to appoint “Supreme Court justices who value the right to vote over the right of billionaires to buy elections.”
Now, with a new justice in the offing, the prospect of reversing Citizens United, among other Roberts Court decisions, seems suddenly larger, more plausible: For campaign-finance-reform proponents, the brass ring seems within reach.
But the matter is not so simple. Even if Scalia is replaced by a more liberal justice, the Court’s campaign-finance rules will not be easily reversed. The precedents extending First Amendment protection to campaign spending date back to 1976, long before Scalia became a judge. The Court generally follows precedent, and overrules past decisions only rarely, even as justices come and go. A new justice will not be sufficient.
If campaign-finance reform similarly succeeds, it will not be through dramatic measures like the current proposals to pass a constitutional amendment overturning Citizens United. Nor will it be through a quixotic presidential campaign, like Lawrence Lessig’s short-lived run on a platform devoted almost exclusively to electoral reform. Constitutional law is more typically changed through a long process of smaller, incremental steps. If the various groups now seeking to fix the problem of money in politics are to prevail, they would do well to take a page from the gun-rights and marriage-equality playbooks.
The place to start the fight against Citizens United is not the Supreme Court, or even Washington, D.C., but the hinterlands. When federal constitutional law is against you, you must look for alternative forums in which to press your case. And as with guns and family relations, most of the laws regarding elections are made by the states.
Both gun-rights and marriage-equality advocates began their campaigns in the states most sympathetic to their cause—Florida for the NRA, Vermont and Massachusetts for marriage-equality activists—and then sought to export favorable precedents across state lines. The NRA sought to expand gun-rights provisions in state constitutions, while pressing for legislation that protected the right to carry concealed weapons and insulated gun manufacturers from liability for injuries caused by their products. Gay-rights groups championed parental rights, nondiscrimination ordinances, and modest domestic-partnership benefits for gays and lesbians. By the time the Supreme Court recognized a right to bear arms, most state constitutions had already done so, and by the time the Court declared that gay and lesbian couples had a federal right to marry, 37 states and the District of Columbia had recognized same-sex marriage.
Some promising campaign-finance initiatives are already appearing at the state and local levels. Maine, Connecticut, Arizona, Seattle, and New York City have each adopted generous public-financing schemes to reduce the influence of private wealth. New York City, for example, matches small donations six-to-one for those candidates who agree to contribution and spending limits. Maine offers a public grant to candidates who raise a qualifying number of $5 donations and then agree to abstain from further private fund-raising. In November, Seattle voters approved a first-of-its-kind ballot initiative that will provide every voter with four $25 “democracy vouchers,” to be distributed as they wish among candidates who agree to abide by spending limits. By amplifying the contributions of ordinary citizens, reducing candidates’ reliance on Big Money, and enticing candidates to accept voluntary limits on their spending, these laws are meant to encourage politicians to pay attention to all their constituents, not just the wealthy ones. And by making realistic amounts of public financing available, the reforms have made it possible for a wider range of candidates—including, so far, waitresses, teachers, and a convenience-store clerk—to run for office and win.