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Sixteen years ago next week, the Supreme Court issued its Citizen United decision. All those years ago, I doubt that any of us could’ve anticipated that Donald Trump would become president not once but twice and one day take donations from Palantir, Google, Lockheed Martin to remake the White House in his gilded vision.
It’s hard to miss that the corrosive effect of money in politics is the underlying problem driving so many of our country’s current problems. We know that beyond the Trump Administration’s flagrant, in-your-face corruption, elected officials at all levels of government participate in less brazen and yet extremely harmful forms of transactional politics that limit Americans’ access to healthcare, clean air and water, basic workers’ protections, and more. We see proof in the headlines and in our lives every single day. Given the reality of the current Trump Administration, it’s difficult to imagine an immediate, effective short-term fix.
Instead of giving up, anti-corruption advocates are considering innovative ways to minimize the influence of money in politics through state-level reforms.
There are a number of state reforms that advocates say could help blunt some of the impact of Citizens United and ultimately diminish the role of major donors in our elections, but I’m focusing on two today: state trigger laws and a novel state ballot initiative. Proponents of both strategies argue that changes to state law can create ripple effects that will stem the flow of money into politics across the country.
First, let’s look at trigger laws. For the Brennan Center for Justice, Jay Swanson and Eric Petry recently laid out a proposal [ [link removed] ] for states to pass trigger laws that would likely be ruled unconstitutional in the moment, for example by banning corporate campaign donations, but also include a trigger clause that means they’d take effect as soon as federal law is changed and allows them. Swanson and Petry write that although “the right of wealthy individuals and corporations to spend unlimited money on elections is now deeply entrenched in the American legal landscape,” states can move the nation toward campaign finance reform by passing laws that “directly challenge the legitimacy of the Court’s decision.”
Trigger laws garnered national attention after Roe was overturned, because several states had already passed laws that immediately banned abortion as soon as the federal government allowed it. No matter what else you think about the incremental anti-abortion legal strategy, its architects were able achieve their central legal goal, overturning a major Supreme Court case, even when it seemed unlikely. So, there are lessons to learn from that strategy. One of those lessons, the Brennan Center authors argue [ [link removed] ], is that trigger laws can serve multiple purposes that can delegitimize a landmark legal precedent and advance a cause.
State laws can play an important role in signaling what voters support (even if state legislatures’ priorities are a faulty political signal as gerrymandering protects many lawmakers’ jobs even when their party passes unpopular bills). For years, anti-abortion advocates pointed to states passing trigger laws as evidence that the public wanted abortion to be illegal, despite evidence to the contrary. Campaign finance-related trigger laws can similarly be used by advocates to demonstrate the actual popularity of restricting big money in politics, Swanson and Petry argue. “As official enactments of state governments, they send a more permanent and enduring signal than political speeches, protest marches, and other forms of popular dissent. And because these statements generally get more respect in court, they have the potential to pay dividends in future legal fights.” The Supreme Court even cited state trigger laws in its decision ending Roe.
The other potential state-level reform that advocates are excited about right now is a ballot measure. This year, Montana voters will have the chance to vote on a version of the Transparent Election Initiative [ [link removed] ], which takes a creative tact to effectively limit corporate political spending. The proposal changes Montana’s charter so that corporations don’t have the power to spend in elections by focusing on corporate regulations rather than campaign finance laws. Last week, the Montana Supreme Court blocked one version of the ballot measure after the Republican attorney general sued, but reformers in Montana resubmitted a proposal for a revised measure, and they’ll have to wait and see if that is approved.
Montana is just one state. But, as Tom Moore, senior fellow at the Center for American Progress, argues in an extremely thorough legal analysis [ [link removed] ], corporations must follow the rules of the charter of every state in which they do business, so the Montana reform would limit the political spending of corporations based elsewhere. That means that what Montana voters decide could have much broader implications. And, like other ballot initiatives, if it works in Montana, organizers can push to get something similar on the ballot in other states. And because the overwhelming majority [ [link removed] ] of Americans support limiting money politics, it’s reasonable to expect that a similar measure would pass in states across the country no matter their partisan lean.
“Overturning Citizens United and the Court’s other erroneous campaign finance rulings will likely take years of sustained effort. It will involve scholars, lawyers, activists, and federal officials working to fashion a new legal consensus,” write the Brennan Center authors, reminding us not to give up yet. “Popular campaigns to change constitutional law take a long time, but when they are done right — and when people stick with them — they work.”
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