“Super Tuesday,” the busiest time of the primary season, came and went this year, with six states holding elections.
Some, including Kentucky and Idaho, featured insurgent challengers taking on long-term incumbents. While many primary challenges fell flat, Super Tuesday was still an important day for Americans.
Money will play a major role in the 2014 elections. If the 2012 cycle–the most expensive in history–is any indication, this trend will only continue.
On one side, challengers like Matthew Bevin (R) of Kentucky forced opponents to spend heavily in the primaries, which could leave them short of cash for the general election, helping tilt control of the Senate back to Democrats in a year when many are predicting the chamber to flip.
Incumbents also benefitted from outside support, like Mike Simpson (R) of Idaho, where spending tilted to Simpson by almost a 5-to-1 margin. Though Simpson was predicted to win that race regardless of cost, it’s hard to discount the effect spending can have.
If campaign finance reformers really want to undo the damage from unlimited campaign spending, they’ll have to take advantage of the new playing field recent Supreme Court cases have created.
A Brave New World
One way to overturn these cases, Citizens United and McCutcheon v. FEC, is to amend the Constitution to make clear money is not equivalent to speech. Groups like Move to Amend are heavily promoting such an amendment.
If you’re one of the 80 percent of Americans who disapprove of Citizens, this is good news.
The problem is, a constitutional amendment is politically difficult. Two-thirds of both congressional houses and three-quarters of state legislatures must approve an amendment before it can be added to the Constitution. Of more than 11,000 proposed amendments since 1789, only 27 have passed.
With so many opportunities for outside groups to have their say, money plays an outsized role in Congress and individual states. It’s likely many Super PACs and 501(c)(4) social welfare groups, both benefitting from the Citizens ruling, would jump into the debate. Campaign finance reformers would almost certainly be outspent by a large margin.
Citizens United’s popularity–or lack of it–doesn’t matter if supporters cannot get the financial leg up. Consider this: labeling genetically modified organisms (GMOs) is incredibly popular, yet a Washington state ballot initiative was defeated last year when opponents far outspent supporters. In other words, if an amendment overturning Citizens United reached the states, we might expect a nationwide ad blitz misrepresenting opposition as an assault on free speech.
The only way to fight excessive spending is by spending more. Super PACs can do that. (All the forms you need to create one can be found here. As Stephen Colbert explained, it’s not that hard.)
A Switch In Time
The other, more plausible, alternative is for the Supreme Court to flip and subsequently hear a challenge against Citizens, which could lead to its being overturned.
In this case, reformers only need to focus on getting supporters elected to the Senate, then hope for retirement in the Supreme Court's conservative wing. Consider it the long con.
Generally, courts consider themselves bound by the principle of stare decisis, “to stand by things decided,” or to let past precedent determine how the court decides.
However, this is not a hard and fast rule: a significant example of the Supreme Court ignoring stare decisis is Brown v. Board of Education, which overturned Plessy v. Ferguson’s “separate but equal” ruling.
Other recent cases, like the 2008 Heller v. DC gun case, or Citizens United itself, have also violated this principle.
Then there’s “the switch in time that saved nine,” Franklin Roosevelt’s controversial threat to expand the Supreme Court, which caused them to switch sides on his New Deal programs. So, there is precedent for the court, well, overturning precedent.
Still, with the court's reputation already suffering post-Citizens, might this add to the perception that this court is just another ideological body?
Or will Americans see this as the Supreme Court overturning a decision which shouldn't have been made in the first place?