Will the Supreme Court Prevent Citizens United From Being Fixed?

Doug Kendall
HuffPost

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."

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