Reversing Citizens United might take a decade or more. But that doesn’t mean nothing can be done in the meantime.



A few weeks ago I got an email from an anti-Citizens-United group inviting me to learn about their 10-year plan for amending the Constitution to regain control of money in politics.

I think they wanted to motivate me and give me hope, but in fact I found their message depressing. I know they were trying to be realistic, but maybe I just wasn’t ready for that much reality: Ten years? And a result that soon only if everything goes according to plan!

But they’re right; constitutional amendments face a high bar, and building up the strength to clear that bar can take a long time. The various groups and leaders pushing a constitutional amendment haven’t even united on a text yet, or even an intention: Should the amendment just deal with campaign finance, or should it also cover corporate personhood? Should it ban corporate contributions itself, or just empower Congress to do so? And so on.

I have to admit it: Given where we are, ten years might be optimistic.

But Scalia’s gone. Doesn’t that change everything? OK, maybe a constitutional amendment is still far in the future, but couldn’t the Supreme Court just reverse Citizens United itself? In theory, yes. The Supreme Court could find a case tomorrow, and issue a ruling that said, “Our bad. Let’s just pretend that never happened.”

If the Senate approves Judge Garland, or if Bernie or Hillary gets to replace Justice Scalia with somebody even more liberal, quite likely the Court will soon have a majority that even wants to undo CU. But there’s still a problem: The law isn’t supposed to work that way, and (in spite of decades of conservative complaints about “liberal activist judges”) the four current liberal justices plus Garland or whoever probably will have more legal integrity than to reverse a ruling just because they don’t like it. [1]

The Supreme Court is supposed to work according to a principle called stare decisis, which basically means that old decisions should stand. In general, it wouldn’t do for the laws to keep shifting every time a new justice got appointed, so the Court is obligated to try to make past decisions work, even if the current justices would have decided those cases differently. [2]

So a more liberal Supreme Court may stop the bleeding, in that it probably wouldn’t continue John Roberts’ conservative-judicial-activism project of dismantling campaign finance law completely. But we can’t count on it to reverse old decisions, at least not without trying everything else first.

What exactly are we stuck with? For the time being, then, we’re stuck in the world Citizens United created. And that leaves us with the question: Given that we’re stuck here, is there anything we can do to make our politics less corrupt, and to lessen the undue influence billionaires and corporations have on the political process? In other words: Is there legislation (short of a constitutional amendment) that Congress could pass and that the Supreme Court wouldn’t declare unconstitutional?

Answering that question requires us to understand what exactly we’re stuck with. Basically what it comes down to is:

Money is speech.

The more political speech the better.

There is even — I hate to admit — a certain logic to this. We don’t put any limits on how much Verizon can spend on convincing us that they have the best wireless network, or how much Pfizer can spend telling us that they have the answer to erectile dysfunction. So why should political advertising be treated worse? The Founders’ intent was that political speech be freer than any other kind, not more restricted.

The big problem with Citizens United is that while it does recognize some exceptions to those principles, it ignores situations so similar as to make no difference. For example, CU still allows a ban on quid-pro-quo campaign contributions. In other words, you can’t say to a senator: “I’ll contribute a million dollars to your super-PAC if you vote for this bill that benefits my business” (at least not if somebody in the room is wearing a wire). But if a senator just happens to vote your way a lot and you just happen to spend a pile of money to keep him in office, that’s fine. [3]

In the real world, of course, large contributions are a corruption problem, even if no direct quid pro quo exists or is even implied. Imagine, for the moment, that Senator Inhofe came to his position on climate change honestly. Even so, it’s hard to imagine any Oklahoma citizen getting him to change his mind through evidence or argument, simply because at this point Inhofe knows which side his bread is buttered on. As Upton Sinclair put it: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

What that leaves. In short, according to the current interpretation of the First Amendment, the law can’t get between a large contributor and the megaphone he wants to buy or rent to make his point. So what options does that leave?

It’s simple really: The law can try to influence the other players in the system. It can give more power to small contributors, and to people who don’t have enough money to contribute to political campaigns at all. And it can influence candidates to refuse money from corporate PACs and instead focus their fund-raising on the newly empowered small donors.

In other words, if we can’t stop billionaires from spending vast amounts to get their way, we can at least make sure that they aren’t gatekeepers. We can use public money to make sure there is a non-billionaire-approved path to financing a congressional campaign. So yes, there will continue to be billionaire-funded and corporate-funded candidates running for Congress. But those don’t have to be all the viable candidates.

The problem with public financing. In a nutshell: Systems that finance campaigns with public money tend to become status-quo-protection schemes.

In every election there are fringe candidates who run just for vanity’s sake or to promote some crazy point of view. (In recent New Hampshire presidential primaries, we’ve had Vermin Supreme, who could generously be described as a performance artist.) If public financing were available to pay for their campaigns, they’d come out of the woodwork, wasting huge quantities of tax money.

So a candidate-based public financing system needs some way to vet the candidates. Looking at recent presidential candidates, for example, the system would have needed some way to decide that, say, Martin O’Malley and Jim Gilmore were serious in a way that Vermin Supreme wasn’t (even though most of the electorate hadn’t heard of any of them). In practice, such a system tends to favor incumbents (who obviously are serious candidates) and to favor the Republicans and Democrats over any new parties that try to emerge. (If you’re the Republican or Democratic nominee for an office, you’re obviously serious; if you’re nominated by the Rent is Too Damn High Party, maybe not.)

So a candidate-based or party-based campaign-finance system is easily painted as the Washington political establishment voting to subsidize itself. And if the public doesn’t keep close tabs on it, that’s what it can turn into.

Keeping citizens in control. Ideally, candidates in every race from the presidency down to city council would be able to do what Bernie Sanders is doing: raise enough money from small contributors to run a viable campaign. Sanders may not win and he may be outspent, but he has raised enough money to tell the voters who he is and what he wants to do.

Such small-donor financing may just barely be possible at the presidential level, where even low-information voters pay some degree of attention fairly early in the process. But is the waitress or trucker who gives $50 to Bernie Sanders also going to come up with $50 every couple of years for a Senate candidate and a House candidate and a governor and on and on? How will such voters even learn enough about lower-office candidates to know which ones are worth supporting? The way things stand, planning a congressional campaign around these kinds of contributors just isn’t practical. And that’s why Congress seems so corrupt: If you’re serious about running a competitive campaign, you have to either raise money from special interests or be so rich that you’re practically a special interest yourself.

But even at the level of senator and representative, it’s not impossible to raise money from small donors, it’ s just very, very unlikely that you’ll raise enough of it. And that brings us to the idea of small-donor public financing: What if public financing wasn’t focused on candidates or parties, but instead was used to magnify the effect of small donors? In other words, what if your donation of $20 to a candidate qualified that candidate for an additional $100 of public financing?

Such a plan would leave citizens in control, rather than bureaucrats or politicians. If voters wanted to give money to a well-known Republican or Democrat, fine. But if they’d rather give to an outsider major-party candidate, or to a Libertarian or a Socialist, or even to Vermin Supreme, that would be up to them. The public money would follow their lead.

Rep. John Sarbanes of Maryland [4] has a bill to do that. The Government By the People Act has three parts:

A $25 tax credit for people who contribute at least $25 to a congressional candidate. Essentially, the government is refunding to you the first $25 of contributions you make. So almost everybody has the means to donate something.

A 6-to-1 match of contributions up to $150 to congressional candidates who qualify for the match by agreeing to forego PAC contributions and getting sufficiently many small contributions. So if you give a qualifying candidate $50, his campaign gets $300. [5]

Provides additional matching in the home stretch of a campaign for candidates who raise $50,000 in small-donor contributions.

So even under the current Supreme Court interpretations of the First Amendment, no billionaire’s or lobbyist’s rights are infringed. If the Koch Brothers want to spend millions to oust your representative (as they have tried to oust mine), they still can. But a candidate who wants to appeal to the people rather than to monied interests has a plausible path to victory. Sarbanes does the math:

Imagine 35 people gathering at a neighbor’s home, each giving $50. With matching funds, that would add up to $10,500. Do five of those events, and 175 people donate a combined $52,500. Politicians suddenly would find it worthwhile to spend time in backyards with real voters, rather than in rarefied high-rises with big shots. More importantly, the candidate would have made connections with people who would be willing to knock on doors and help work phone banks, something K Street swells never would do.

Why would Republicans go for this? As the party that benefits most from big-money contributions, Republicans generally get an advantage from the current system. So naturally, most of the current co-sponsors of Sarbanes’ bill are Democrats.

But among voters, Republicans worry as much as Democrats about the corruption of the current system. (That’s why Trump’s pledge to self-finance his primary campaign is working so well for him.) And while any public-financing plan would have a cost, there is a conservative case that this would be money well spent: If it could prevent just one Bridge to Nowhere or one Solyndra loan, the plan would easily pay for itself. That’s why a Republican as conservative as North Carolina’s Walter Jones is on board.

And there’s a self-serving answer to why congresspeople of either party might support such reform: If you build a network of small donors in your district, that network is yours. No one can call you up and threaten to take it away from you if you don’t do what they want. But under the current system, many apparently secure senators and representatives live in terror of getting such a call.

Whether we’re talking about liberals or conservatives, no one goes into politics because they dream of toadying for lobbyists and kissing the rings of billionaires. The dream is of being a real decision-maker, not the puppet of some vested interest.

Summary. We can continue laying the groundwork for an anti-Citizens-United constitutional amendment some time in the far future, and we can continue hoping that a future Supreme Court will see the inherently corrupting nature of huge campaign contributions. But in the meantime, there is an actual piece of legislation that would be a big help.

Politicians who think the current system works in their favor may want to ignore that bill. But their voters — even their conservative Republican voters — see the problem and want a solution. So if we can get the Sarbanes bill on the national agenda, to the point that every candidate will have to take a position on it, lots of people you don’t expect might decide they’d better support it. And even politicians who seem to be securely on somebody’s leash may decide they’d like to chew through that leash.

[1] Just for perspective: During the ten years between Scalia’s death and, Alito replacing O’Connor in 2006, the Court probably had a majority that wanted to reverse Roe v Wade. But it didn’t happen.

[2] A good example of how the process is supposed to work is in Chapter 4 of David Strauss’ book The Living Constitution, in which he describes how Brown v Board in 1954 came to overrule Plessy v Ferguson of 1896. The 1954 Court didn’t just reverse the 1896 Court out of the blue. In between came a long series of cases, in which the Court kept trying and failing to square “separate but equal” with the rest of the American legal tradition. By 1954, separate-but-equal was so full of exceptions and provisos that it couldn’t hold together. So Brown wasn’t just saying that separate-but-equal was a bad idea, it was saying “We tried to make this work and we can’t do it.”

[3] Suppose, say, that Senator James Inhofe is the voice of climate-change denial in the Senate and uses his position as chair of the Environment and Public Works Committee to block any effort to shift America away from its dependence on fossil fuels. And then suppose that his top campaign contributions all come from producers or consumers of large quantities of fossil fuels. The Supreme Court sees no problem there that the law might want to address; quite the opposite, it sees any law that might get in the way of that arrangement as a violation of free speech.

In particular, there are virtually no limits to what a contributor can spend on political “speech” if there is no direct coordination with the candidate. So if, say, the Koch Brothers decide (totally on their own) that (for the good of the country) they want voters to keep electing wise senators (like Jim Inhofe), and if they want to spend vast amounts of their money to say so (whether Jim Inhofe likes it or not), that is simply their First Amendment right.

[4] If the name rings a bell, you’re probably thinking of his father, Senator Paul Sarbanes.

[5] To me, that sounds like a 5-to-1 match, with your original dollar making the sixth. But apparently that’s not how they figure. I’m making my math consistent with the examples Sarbanes gives.