For a nation browbeaten with third-party, ultra-negative campaign ads, relief may finally be in sight in the form of Merrick Garland.
Despite his vote with the majority in a key case that opened the door for super PACs, the 63-year-old federal judge whom President Barack Obama nominated to the Supreme Court today has a record that suggests he’d favor more regulation of money in politics, some campaign finance reformers say.
In the years since the Supreme Court cleared the way for political donors to give unlimited sums to third party groups with its landmark 2010 Citizens United decision, reform groups have explored the various ways in which the ruling could be undone. A constitutional amendment to overturn the decision became one popular route, endorsed by Barack Obama, Hillary Clinton and Bernie Sanders.
But a constitutional amendment was always a long shot. Now, with an open seat on the court, another alternative has emerged: The high court could reverse itself. Should Garland manage to make it through the Senate, there’s a possibility the Supreme Court would do exactly that.
Garland has a pretty good record on campaign finance-related issues in the eyes of campaign finance reformers. Last year, in Wagner v. Federal Election Commission, he authored a unanimous decision to uphold a ban on government contractors making political contributions, and in 2008 joined a unanimous decision saying that the FEC wasn’t doing enough to implement the McCain-Feingold Campaign Finance Reform Act. In 2009, he authored a decision upholding lobbying disclosure in which he noted that, “More than 50 years ago, the Supreme Court held that the public disclosure of ‘who is being hired, who is putting up the money, and how much’ they are spending to influence legislation is ‘a vital national interest.'”
Garland has also upheld limits on corporations’ First Amendment rights in, among others, a decision that said it was acceptable for government agencies to require corporations to disclose where their food was sourced from, and another that prevented corporations from saying a product cured diseases without a trial to prove it.
These cases, all covering different legal terrain, give us a sense how Garland might treat a challenge to Citizens United, says Scott Greytak, counsel for the reform group Free Speech for People. “With Citizens United, you think about a double helix in DNA: It wraps up corporate constitutional rights and also the idea of money in politics.”
There is one very important case on Garland’s record, however, that gives reformers pause: SpeechNow vs. FEC, a decision that, along with Citizens United, made possible the current proliferation of super PACs. Citizens United did away with limits on how much third party groups could spend, so long as they didn’t coordinate with campaigns. SpeechNow allowed donors to give as much as they wanted to political action committees — again, so long as those groups didn’t coordinate with campaigns. The decisions, both decided in 2010, were two sides of the same coin. Garland joined the unanimous decision on SpeechNow written by Judge David B. Sentelle.
But Garland’s decision on SpeechNow does not necessarily indicate how he would vote on a case seeking to reverse Citizens United, should one reach the bench, reformers believe. “We personally think that there’s a lot of daylight between Citizens United and SpeechNow,” said Greytak.
Stephen Spaulding, senior policy counsel and legal director at Common Cause, argued that Garland’s ruling could be explained by the fact that federal appeals court judges are bound by Supreme Court precedent. The year SpeechNow came before the DC Circuit, the justices already, through Citizens United, were sending a pretty clear message about how the high court felt about super PAC spending. UC-Irvine election law expert Rick Hasen explains:
When SpeechNow got to the DC Circuit, the Supreme Court’s signal was clear: the logic was that if independent spending can never corrupt (as the Supreme Court held in Citizens United), then contributions to fund independent spending by a PAC cannot corrupt. The Citizens United case is cited 26 times(!) in SpeechNow. Look, if I were a judge on the DC Circuit having to follow Supreme Court precedent I would have voted the same way in SpeechNow, despite the fact that I think Citizens United (and Buckley) should be overruled. That’s not the job of a Circuit Court judge.
On the Supreme Court, Garland would be in a position to overturn past Supreme Court rulings in a way that he could not while on the DC Circuit Court.
To be sure, even if Garland would, in theory, vote to reverse Citizens United, the path to get such a case before the Supreme Court is a long one. A city or state government would have to put in place a law that conflicted with Citizens United — for instance, capping election spending by third party groups. That law would then be challenged in court, and, through appeals, make its way through the legal system, reaching a federal court and then ending up before the Supreme Court. Reformers would have to pick their fight carefully, making sure the case originated somewhere where the federal court might vote in their favor.
And, record aside, no one except, perhaps, Merrick Garland knows how Merrick Garland might ultimately vote in a scenario in which Citizens United came before the court. Good-government groups are calling on the Republicans who control the Senate to allow Merrick a confirmation hearing, hoping to hear his views on these issues and others.
In the hours after Obama’s Rose Garden announcement, his pick was winning praise from across the ideological spectrum. Senator Elizabeth Warren of Massachusetts, a hero to the Democratic left, praised the president’s choice. So did conservative icon Kenneth Starr, the former prosecutor of President Bill Clinton who now heads Baylor University. Even so, Senate Republicans have promised not to act on the president’s nomination — at least, not until after the November election.