Money, Politics, and the Constitution

By Erik Opsal, communications coordinator at The Brennan Center for Justice.

For those following campaign finance law, this week’s Supreme Court decision to throw out one provision of Arizona’s public financing system came as no surprise. The Court’s one swing vote, Justice Anthony Kennedy, tipped his hand when, during oral argument, he bluntly asked if it was fair to say the law restricted speech.

After last year’s sweeping decision in Citizens United, campaign finance reform advocates have come to expect the worst. In five years, the Roberts Court has heard five campaign finance cases. And in those five cases, voters lost out to powerful, wealthy interests every time.

Although this case is a setback, there is one clear silver lining — public financing remains constitutionally sound. The Chief Justice said so himself. “We do not today call into question the wisdom of public financing as a means of funding political candidacy,” Chief Justice Roberts wrote for the majority. “That is not our business.” As UC-Irvine Law Professor Rick Hasen characterized the Roberts decision:

The problem with Arizona’s law was not that it gave public financing for elections to candidates, but that it pegged the amount of financing to the political spending of opponents or independent groups opposing the candidate. But lump sum payments should be okay.

With the Arizona decision behind us, it is time for campaign finance reform advocates to regroup and rethink about how to move forward on these issues.

That’s something the other side has done incredibly well. The idea that corporations are people, as we apparently learned in Citizens United, wasn’t a bolt out of the blue. It came from an extremely well-organized effort to advance the First Amendment rights of corporate speakers. Three decades ago, the First Amendment had nothing to do with campaign finance law, but now claims of free speech are used to overturn legitimate campaign finance restrictions.

What we need to remember is why these laws were passed in the first place — to protect voters from rampant corruption. That’s why Arizona voters enacted its public financing law. They were sick and tired of corruption scandal after corruption scandal, which ultimately resulted in 10 percent of their legislature being indicted.

This year, the Brennan Center started this new voter-centric movement by releasing our new book Money, Politics and the Constitution: Beyond Citizens United.

In the wake of Citizens United, we gathered the nation’s best legal scholars. The goal? Build a new jurisprudential movement that puts the interest of voters first. The ideas in this book, we hope, will trickle into law reviews, briefs and, ultimately, court decisions. And as we’ve learned from our opponents, we must start with big picture principles first. It is time to craft a vision of our constitution that allows “we the people” to take back our government for ourselves.