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Why are the prospects for reform so poor?

It mostly comes down to the Supreme Court and political polarization. Neither was an important factor for more than half a century after the first campaign finance reforms were passed in 1907 and 1910. During that half-century, the court played only a small role in campaign finance law, and partisan polarization in Congress was declining from a high point in the 1890s. Today the Supreme Court dominates the issue and congressional polarization has gone back to nineteenth-century levels.

Campaign finance has become thoroughly judicialized, a term used to describe a situation in which key decisions on fundamentally political issues are made by judges rather than legislators.

Judicialization began with Buckley, which was handed down in 1976, when polarization was beginning to increase. The court had become more conservative under the Nixon administration, and it made an even sharper turn to the right under George W. Bush. The Roberts court is the most conservative one we have seen since the 1930s, and three of its eight (as of this writing) justices—Roberts, Alito, and Thomas—are among the five most conservative justices to sit on the court in that time. (The late Justice Scalia was also one of the five most conservative justices.)12

By the time President George W. Bush appointed John G. Roberts and Samuel Alito to the court, partisan polarization in Congress was greater than at any other time in modern history. Congressional polarization has been asymmetrical, increasing not because each party was moving away from the ideological center, but because Republicans made a sharp turn to the right. Part of the GOP's increasing conservatism was a committed opposition to campaign finance reform.13

This is why reformers have put so much energy into passing reforms at the state and local levels. The hope is that the success of those reforms will cause them to spread across the country. But even the successful reforms passed in blue or purple states and cities may never spread to red ones. The states already have different kinds of voting laws—blue ones to make it easier to register and vote, red ones to make it harder—and the same could happen with campaign finance laws.14

It does not matter that Citizens United may be the most hated Supreme Court opinion in recent memory. Nor does it matter that 80 percent or more of Republicans and Democrats think the decision should be overturned and that Congress should curb super PACs by imposing limits on independent expenditures. And it does not matter that bipartisan agreement on these points is especially striking at a time when the public may be as polarized as the politicians.15

None of these things matter, because our political system is not very responsive to public opinion. This was the conclusion two political scientists reached after a detailed study of 1,779 policy issues: "even overwhelmingly large pro-change majorities, with 80 percent of the public favoring a policy change, got that change only about 43 percent of the time."16

They also do not matter because what that 80 percent of Americans dislike so much is rooted in Buckley. There would have been no Citizens United, no super PACs, and no opening for billionaires to spend unlimited sums of money in elections without Buckley's rulings that preventing corruption is the only permissible justification for regulating campaign funds, and that independent expenditures cannot be limited because they are pure speech. Curbing the role of big money in elections would mean overturning the landmark case in modern campaign finance law, and the chances of that happening are a lot less than 43 percent.

The chances of curbing big money in elections would be a lot better if the 5-4 split on the Supreme Court went the other way. How likely is that?

The death of Justice Antonin Scalia has already shown us just how far we are from getting the better politics we need to get a better Supreme Court.

 
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