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Will the Supreme Court Prevent Citizens United From Being Fixed?

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In the first big campaign finance case since the U.S. Supreme Court's opinion last year in Citizens United v. FEC, the Court will hear arguments on Monday in McComish v. Bennett. McComish is a critical test for the Roberts Court. Will it tolerate, or will it kill off, Arizona's public financing law, put in place to control corporate and special interest influence over the electoral process? Public financing is one of the last, best protections against corruption available in the wake of Citizens United.

In Citizens United, a bitterly-divided Supreme Court gutted key parts of the McCain-Feingold campaign finance law, ruling by a 5-4 vote that corporations have a right to spend unlimited sums in candidate elections, effectively allowing corporations to drown out the voices of individual Americans. The majority in Citizens United sharply departed from our Constitution's text and history. Corporations are never mentioned in the Constitution, they cannot vote in elections, stand for election, or serve as elected officials, but the Court in Citizens United ruled they can overwhelm the political process using profits generated by the special privileges -- such as perpetual life and limited liability -- granted to corporations alone.

The McComish case could be the next shoe to drop, or, perhaps, a turning point by the Court back toward fair elections and the Constitution. The Court will consider the constitutionality of Arizona's Clean Elections Act, a thoughtful effort to deter both the appearance and the reality of campaign corruption by providing matching funds to participating candidates to ensure they can run a competitive race, even against a privately-financed candidate with huge reserves or a candidate with the support of corporate special interests. In a brief representing constitutional law scholars Bruce Ackerman of Yale, Lawrence Lessig of Harvard, Fordham's Zephyr Teachout and UCLA's Adam Winkler, my organization, Constitutional Accountability Center, argues that the Court should uphold Arizona's law -- not least because the Framers were obsessed with the possibility of our elected officials being corrupted by special interests. The Framers did all they could to make sure public servants in fact represent "We the People."

Among many things at stake in McComish, one of the most important is the impact it could have on efforts to prevent corruption in state judicial elections (pdf). The Grisham novel facts of the Caperton v. Massey case (coal executive spends $3 million to help elect state Supreme Court justice who then casts deciding vote throwing out $50 million verdict against coal company), coupled with the presence of representatives of the Chamber of Commerce at a recent Koch retreat to discuss influencing the outcome of state judicial elections, show just how brazenly political judicial elections have come in recent years. In response, three states have adopted public financing systems to reduce the public's impression of bias in their states' elected judiciaries: New Mexico, North Carolina, and Wisconsin. West Virginia, the home of the Caperton case, has a public financing system slated to go online in the 2012 election cycle. McComish could have a profound impact on the viability of these efforts to clean up the selection process for our state courts.

We should all care about having fair elections, free from corruption, at both the federal and state level. For that reason, we should all be watching the McComish case closely. Will the Court that permitted the injection of unlimited corporate expenditures into our election process now prevent one of the best ways to ensure candidates without corporate backing have a fighting chance? We'll know the answer soon.

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