It should have come as no surprise that the Supreme Court would strike down the lower court decision to uphold Montana's ban on corporate political spending. Even if Justice Kennedy, say, had been taken aback by the public reaction to his flawed opinion in Citizens United, it is extremely rare for the Court to directly reverse itself. The more likely outcome, if the Court had taken the case rather than simply reversed the lower court's decision, would have been that it might move even further in the direction of Citizens United – for example, by indicating that it would reconsider prohibitions on direct contributions from candidates. As Rick Hasen of the Election Law Blog commented yesterday, “The best way to win before the Roberts Court if you are a campaign reformer (aside from on disclosure issues) is not to play.”
What does it mean “not to play”? It doesn't mean giving up on everything. And it shouldn't mean pursuing the even more futile path of a constitutional amendment to reverse Citizens United. Rather, it means getting over the obsession with corporate money, which plays a small role in federal elections and Super PACs, and getting refocused instead on the broader question of the ways in which political inequality reinforces economic inequality. To put CU in perspective, corporate money (mostly from privately held companies) represents only 17 percent of contributions to Super PACs, and Super PACs represent, so far, only about 10 percent of the total money in federal politics. That's not to dismiss the issue or the cases, but corporate political spending is only one part of the story of how money distorts democracy.
While Citizens United and the somewhat more important SpeechNow case have certainly brought in a new atmosphere of “anything goes” to money in politics, there are answers that don't involve waiting around for one of the five conservative justices on the Court to retire. One, of course, is generous public financing, such as New York City's system, which provides a six-to-one match on small contributions. State legislators and Governor Cuomo have been pushing to extend the city system to the state level. Everywhere that similar public financing systems have been put in place (Arizona, Connecticut, Maine) they have been popular, resilient, constitutionally sound, and have broadened the role of small contributors and brought new candidates into the process.
The recent court decisions have also opened new opportunities for Congress and state legislatures to require the disclosure of donors to outside groups as well as to candidates. Law professor Ciara Torres-Spelliscy recently described this move as a “dramatic 180 degree turn...on the issue of the constitutionality of disclosure.” Disclosure doesn't solve all problems, but a big part of the story of money in politics post-Citizens United is the creation of political entities, such as Karl Rove's Crossroads GPS, that are not Super PACs but instead use a section of the tax code for non-profits to avoid limits and also maintain anonymity for donors. This could be fixed by the IRS (these non-profits are not supposed to have election activity as their primary purpose) or by Congress, without the slightest constitutional problem.
While Hasen is right that it would be futile to keep knocking on the door of the Supreme Court, hoping that they've changed their mind, there's a lot of work to be done, and a lot of progress that can be made, without involving the Court at all.
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