How to Reverse Citizens United

What campaign-finance reformers can learn from the NRA.

- David Cole

Few 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.