January 21, 2016

After 'Citizens United': From Law Reviews to Litigation


Citizens United v. FEC, Ron Fein

by Ron Fein, Legal Director, Free Speech for People

Six years after the Supreme Court’s Citizens United v. FEC decision, it’s time for campaign finance reformers to move from defense to offense—in the courts.

Since Citizens United struck down limits on corporate and union political spending, the Court has further chipped away at federal and state campaign finance laws in areas such as per-person overall contribution limits and effective public financing in elections with big-money candidates. These decisions have led to a growing popular movement to amend the Constitution to overturn Citizens United and the doctrines that led to it. They have also led to a florescence of innovative thinking from scholars and advocates on money in politics, corporations, and democracy.

We have the foundation for a new jurisprudence ready for courts to adopt. And we have evidence of how big money in politics causes real harm to Americans’ wallets, justice system, environment, and even quality standards for children’s surgery.

Now it’s time to move away from a position of indefinite defense, where James Bopp sets the legal agenda. It’s time to develop game-changing affirmative impact litigation challenging the role of big money in politics. It’s time to stop being amici in support of defendants and start being plaintiffs.

Of course, we should be strategic in identifying the most likely avenues for success in the medium term. One area is state judicial elections, where the campaign finance reform position has won twice in a row at the Supreme Court, in cases stemming ultimately from concerns about judicial impartiality. Professors Erwin Chemerinsky and James Sample have argued that the due process implications of campaign spending in judicial elections justify a constitutional analysis quite different from legislative and executive elections.

Another promising area involves challenging super PACs, the contribution-limit-evading mechanisms created by SpeechNow.org v. FEC, a D.C. Circuit decision that moved well beyond what the Court actually decided in Citizens United. Professors Laurence Tribe and Albert Alschuler have argued that the Supreme Court may be ready to overrule the court of appeals even while holding fast to Citizens United. Finally, we need to think beyond federal court and develop innovative cases based on state constitutions.

But some urge instead that we hunker down for a long winter: defend what we still have and focus exclusively on (hopefully) “litigation-proof” low hanging fruit reforms such as improved disclosure and small-dollar public campaign funding. They advise staying out of court until there’s a change in Supreme Court composition. For example, considering the aging Supreme Court Justices Scalia and Kennedy, Professor Rick Hasen suggests that the path forward is to elect “a Democratic President [to] appoint[] their successors.”

But ceding the courthouse to campaign finance reform opponents and tying this issue to one political party’s presidential prospects would be a serious strategic mistake, for three reasons:

1. Getting big money out of politics has overwhelming bipartisan support. For example, in 2012, Montana voters chose Mitt Romney over Barack Obama by 55-42. Yet in the exact same election, those same Montanans voted 75-25 to support a constitutional amendment overturning Citizens United. Poll after poll shows that 75-80 percent of voters support broad constitutional change and reject the Supreme Court’s campaign finance decisions with minuscule differences between Republicans and Democrats. Let’s not turn an issue of broad consensus into a partisan wedge.

2. The next president may not be able to reshape the Court. Nowadays, justices may delay retirement until the election of a president with a congenial outlook. If a Democrat wins in 2016, it’s a safe bet that neither Scalia nor Kennedy will retire; if a Republican wins, it’s a safe bet that neither Ginsburg nor Breyer will retire.

Consider, for example, President Obama’s lack of influence on the Supreme Court. In eight years, he got two appointment opportunities, but neither changed the Court’s ideological balance: He replaced Justice Souter with Justice Sotomayor, and Justice Stevens with Justice Kagan. The 5-4 split that he inherited in 2008 hasn’t changed. In early 2009, when David Boies and Ted Olson filed a challenge to California’s ban on same-sex marriages, skeptics warned that it was “too early” and “too dangerous” to bring the case just then. If they (or Jim Obergefell and his lawyers) had decided to wait until Obama could change the Court, they’d still be waiting.

Of course, voluntary retirement is not the only way justices leave the Court. By this summer, both Justices Kennedy and Scalia will be 80. But according to government actuarial calculations, men that age can expect to live another nine years, to 2025. (Nine years is the average; these justices are generally healthy and enjoy the very best medical care.) That’s long enough to outlast a two-term president.

3. Even if a more favorable Supreme Court is on the horizon, we need to develop a pipeline of test cases now. Litigation can take years to develop and progress before it reaches the Supreme Court. When a pro-reform majority emerges, we need to have cases ready for them.

In the meantime, we may have stops and starts. But that’s the nature of groundbreaking impact litigation. Legal change, like social change, often moves through slow and apparently unsuccessful grinding until a breakthrough inflection point. Consider, for example, the recent dramatic changes in Second Amendment jurisprudence. Until recently, supporters of an individual (rather than collective) right to own firearms faced a broad scholarly and judicial consensus in opposition. They brought case after case, often losing . . . until they won.

Other times, innovative entrants file long-shot cases that risk averse national organizations shy away from . . . until they don’t. In 1999, a tiny nonprofit called the International Center for Technology Assessment filed a petition seeking to force the Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. The “largest and most established environmental organizations” didn’t want to get involved. Eventually, those organizations, and states like Massachusetts, jumped aboard and helped win the historic victory in Massachusetts v. EPA.

Even court losses can generate concurring or dissenting opinions that help shift the Overton window and reframe the debate. Citizens United wasn’t James Bopp’s first case. Rather, he developed a series of challenges as part of a 10-year strategy, losing some along the way. In McConnell v. FEC, he lost on the very same issue (the ban on corporate political spending) that he won just seven years later in Citizens United. And Justice Kennedy didn’t start from scratch in Citizens United. His majority opinion there drew heavily on his earlier McConnell dissent. So, even unsuccessful challenges can lay crucial groundwork for later victories.

In early 2014, the Brennan Center for Justice’s president Michael Waldman observed: “Years of scholarship, theorizing, amicus briefs, test cases and minority dissents await before a new majority can refashion recent constitutional doctrine.” We’re doing well so far on the scholarship, theorizing, and amicus briefs, and we’ve gotten some good minority dissents.

Now it’s time for the test cases.