The New Yorker points out that this week marks the fifth anniversary of Citizens United v. Federal Election Commission, the landmark Supreme Court decision that changed the landscape for campaign financing.
The magazine asks whether the Court, under Chief Justice John Roberts, might be getting ready to gut the decision. On Tuesday, the Court took up a case called Williams-Yulee v. Florida Bar, which looks at the concept of campaign contributions and the First Amendment.
But a number of seasoned Court watchers doubt that will happen any time soon.
“Campaign-finance reform is on a losing streak of seven cases, each decided by the same 5–4 margin,” the magazine writes. “The effects are more apparent with every election cycle.”
According to OpenSecrets.org, dark money — donations to Political Action Committees that work on behalf of candidates, but are not official campaign funds — is causing a fundamental shift.
The average winning House of Representatives campaign cost $1.2 million in the 2014 elections. The average winning Senate campaign cost $8.6 million. Those numbers are actually dropping, and dark money is the reason why.
Spending by organizations that do not disclose their donors increased from less than $5.2 million in 2006 to well over $300 million in the 2012 election. As of last August, Open Secrets estimated that $50 million had already been spent on 2014 Congressional campaigns.
There is talk in political circles that the dark money situation must be dealt with in some fashion, but there does not seem to be a one-size-fits-all solution. According to the New Yorker,
Some progressives are advocating executive action—I.R.S. and S.E.C. rule-making, for example—as a means of mandating disclosure and shining a little light on that dark money. Some are drafting anti-corruption legislation that could, they believe, survive a challenge before the Roberts Court. (Whether it could pass the Republican Congress is another question.) Others, meanwhile, are looking for alternatives to Buckley v. Valeo—the landmark 1976 decision that equated spending with speech and established the basis for the current system, which treats campaign expenditures and contributions differently. “Buckley is a rotten tree,” the N.Y.U. law professor Burt Neuborne told the Brennan conference. The justices “know it’s wrong, they know it’s intellectually indefensible, and my sense is reformers should be zeroing in on pushing Buckley over.” How to replace that precedent—and how to square the First Amendment, as it is popularly understood, with meaningful limits on money in politics—remains an open, and vexing, question for lawyers and policymakers.
As the Court considers more campaign finance cases, it’s worth keeping track of whether there is any shift in voting by the justices. For now, that seems unlikely. As a constitutional lawyer told the magazine, “We have all the arguments we need; we just don’t have the Court we need.”