For the last 10 years, the Supreme Court has engaged in a systematic effort to transform American democracy. Steered by Chief Justice John Roberts, the Court loosened restrictions on political advertising by corporations and unions, gutted a key provision of the Voting Rights Act, upheld the rights of states to enact restrictive voting laws, and, in the words of Justice Stephen Breyer, “eviscerate[d] our Nation’s campaign-finance laws.” This year, the Court will decide a voting and redistricting case that could change the lines of virtually every state legislative district in the country. There is no area of the law the Roberts Court has more thoroughly transformed. Almost all of the Court’s major election cases were decided by a 5-4 vote. Of course, on the Court, the majority rules. But it would not take a constitutional amendment or a revolution in legal scholarship to bring this string of decisions to an end. It is extremely likely that the next president will have the opportunity to replace at least one (and very likely more than one) Supreme Court justice, as the previous five presidents have done. One new justice on the Court might be enough to push the law in the opposite direction.
Today, super PACs enable the very wealthiest to spend unlimited amounts on campaigns. It’s hard to remember that they didn’t even exist before 2010. That year, the top 100 donors spent less than one third as much as the total contributions of all small donors to federal candidates. By 2014, that drastically changed. The top 100 super PAC donors spent almost as much as the combined total contributed to candidates by all small donors.
Super PACs are a legacy of the Roberts Court’s 5-4 decision in the Citizens United case. At the heart of that ruling was the assumption that independent election spending does “not give rise to corruption or the appearance of corruption.” Three months later, in SpeechNow, a lower court made the logical inference that if independent spending does not corrupt, there is no reason to limit contributions to independent spending groups. Thus “independent-expenditure-only PACs,” soon to be called super PACs, were born.
Could super PACs be banned if Citizens United and SpeechNow were reversed? In a word, yes. In fact, the first court to hear SpeechNow held to what had been the standard before Citizens United, noting that the Supreme Court “ha[d] never held that, by definition, independent expenditures pose no threat of corruption,” and that a group’s legal “independence” does not prevent it from forming close ties with officeholders that could lead to corruption. If a new Court were to accept this reasoning, it could restore the ban on super PACs by upholding the $5,000 limit on donations to political committees; Congress or the Federal Election Commission (FEC) could do the same if the Court overruled Citizens United.