New 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.
Recent history suggests a more reliable means of constitutional change. A quarter century ago, the idea that gay and lesbian couples had a constitutional right to marry was at least as far-fetched as campaign-finance reform has seemed in recent years. And in 1991, former Chief Justice Warren Burger dismissed as fraudulent the notion that the Second Amendment protects an individual right to bear arms. But in 2008, in District of Columbia v. Heller, the Supreme Court recognized an individual right to bear arms, overturning almost 70 years of settled law. And in 2015, the Court declared in Obergefell v. Hodges that gay and lesbian couples have a right to marry. Both changes came about gradually, through decades of work by citizens’ groups—such as Freedom to Marry and the National Rifle Association—committed to an alternative constitutional vision.
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.