President Trump is expected to announce tonight his nominee to fill the seat vacated by Justice Antonin Scalia on the U.S. Supreme Court. Who sits on the U.S. Supreme Court matters to the health of our democracy. After all, the court is the last line of defense against executive and legislative power. Leaving the rules of our democracy to elected officials alone, without a robust check, would allow the foxes to guard the henhouse.
The Supreme Court has, at times, played a key role in protecting and expanding our democracy. But in the past two decades, we have seen the court chip away at campaign finance and voting rights laws that are meant to preserve the right of every citizen to participate in our government.
Right now, our democracy is at a crossroads, and much of what’s at stake will be determined by the U.S. Supreme Court. We need a justice who understands that every eligible voter should be able to participate freely and have equal say in our democracy, not just the wealthy and privileged few.
Ever since the 1960s, the Supreme Court has played a key role in working to realize the fundamental goals of our democracy: a system where all citizens are able to participate in our electoral process. The Supreme Court recognized that voting is a fundamental right, preservative of all rights and enforced the 14th and 15th Amendments as well as the Voting Rights Act (VRA), when it expanded access to the polls by outlawing the poll tax and opening the door to the voting booth to black voters.
But more recently, the Supreme Court has eroded those voting rights protections. In 2013, in Shelby County v. Holder, the court dismantled a key provision of the VRA that allowed the Department of Justice or a three-judge federal court in D.C. to block discriminatory policies before they went into effect. Without the full protections of the VRA, we have seen an increase in state and local laws – from polling closures to strict voter ID laws to registration restrictions – that make it harder to vote for our most vulnerable populations.
For example, on the same day the Shelby decision came down, Texas put into effect a harsh voter ID law that had previously been blocked by DOJ. States like Alabama, Mississippi and North Carolina passed similar voter restrictions, which would not have passed muster under the full protections of the VRA.
After years of litigation and factual findings, federal courts across the country have recently found many of these voting provisions discriminatory. Several of these cases, testing the bounds of the state’s power to burden the right to vote, are en route to the U.S. Supreme Court. Voting rights protections hang in the balance as the new Supreme Court takes shape.
If the Court continues along the same path as in recent years, and fills this seat with a justice who fails to robustly protect our democracy, we could see serious losses to the integrity of our democratic process.
The Supreme Court, as a key protector of our democracy, must continue to ensure that the people choose our representatives not the other way around. The Court truly engaged in this role beginning in the 1960s by establishing the one-person, one-vote principle: the basic idea that our votes should count equally in electing our Congressional and state and local representatives in Congress. Before then, wildly different sizes of districts distorted our democracy, giving some voters far more power than others.
The composition of districts can be just as important as their size. In recent years, legislators have distorted redistricting maps for their own gain. In almost every state, politicians draw voting maps to ensure re-election, at the expense of American voters and our democracy as a whole. The fact is, voters are not able to choose their elected officials, and therefore, are not able to exercise their democratic right to influence the policy decisions that impact their lives. Even though the court has said partisan gerrymandering is unconstitutional, it has failed to provide courts a standard for determining the constitutionality of a partisan gerrymander. In its upcoming term, the court will likely have another opportunity to address this corrosive practice. CLC is litigating a case, Whitford v. Gill, which can end pervasive partisan gerrymandering once and for all.
In the case, CLC is representing 12 Wisconsin voters who have challenged the state’s Assembly district lines as an unconstitutional partisan gerrymander. In 2011, Republican legislators in Wisconsin redrew the state Assembly districts to maintain Republican control. They did this in a secret office – away from the Capitol, the public and the press – and then rushed the passage of their plan through the Assembly. Their strategy paid off, with Republicans gaining 60 percent of the seats in the State Assembly, despite receiving only 49 percent of the statewide vote in 2012.
Our case is the first purely partisan gerrymandering case to go to trial in 30 years. Through this litigation, the plaintiffs seek to establish for the first time a manageable standard by which courts nationwide can analyze partisan gerrymandering claims.
CLC recently won the case at the district court level, before a three-judge panel in Wisconsin federal court. The panel found that the Wisconsin state Assembly plan was an unconstitutional partisan gerrymander. The state of Wisconsin plans to appeal, and if they follow through, the case is guaranteed to go to the Supreme Court, likely in 2017.
Similarly, there are two major racial gerrymandering cases before the court right now. In the 2010 redistricting process, many states purposefully packed black voters into districts at very high levels in order to diminish their voting power in other districts and throughout the state. Two terms ago, the court reaffirmed that this type of behavior is unacceptable in a case regarding the Alabama legislative districts. Pursuant to that ruling, the three-judge court just held 12 of those districts unconstitutional. The court now faces similar questions in Virginia and North Carolina.
These cases continue. The court must enforce basic constitutional principles: the states cannot single out black voters and pack them tightly into a few districts in order to diminish their voting power, even if it’s for the sake of politics, “not race.” The use of “race as a proxy” for politics is unconstitutional and harms minority voters.
Campaign Finance Law
The Supreme Court will have a major role to play in enforcement of campaign finance law. And it’s more important than ever, as the chasm deepens between wealthy special interests and everyday Americans. Voters want the court to preserve a system that protects the rights of every day Americans, but that system is under attack.
The 1974 Federal Election Campaign Act (FECA) amendments were passed in the wake of the Watergate scandal, in response to mounting concerns about the government’s lack of integrity and transparency. The ‘74 amendments and subsequent amendments modernized the federal campaign finance laws by establishing presidential public financing, strengthening contribution limits and beefing up disclosure laws. FECA isn’t perfect – it still has glaring loopholes – but over the years, legislative improvements have continued to expand disclosure requirements, improve the effectiveness of contribution limits and add to the Federal Election Commission’s enforcement capabilities, all key components to creating meaningfully open government. In recent years, the Roberts Court has been persistently chipping away at this progress.
The disastrous decision in Citizens United v. FEC (2010) has not worked out as planned for the court. It struck down restrictions on corporate spending in elections on the theory that disclosure provisions enacted in 2002 as part of the Bipartisan Campaign Reform Act ( BCRA), as well as the requirement that such spending would be “independent,” would act as checks on any abuses. But in practice, any meaningful enforcement of disclosure and anti-coordination laws has languished. Voters have instead been inundated by a surge of anonymous outside spending, or “dark money,” with no meaningful way of attributing election ads to their funding source.
The court continued down the road of dismantling campaign finance protections in McCutcheon v. FEC (2014) – where it struck down the aggregate contribution limits, essentially enabling the wealthy to decide who runs for office and what issues get attention from lawmakers. A single donor can now give well over a million dollars in a single election cycle directly to his preferred candidates and party committees.
The court must recognize the dangerous path we are on and chart a new course – protecting our democracy from domination by big money and special interests. There are two major campaign finance cases—both already pending before the court on direct appeal—that will have an impact on disclosure and contribution limits.
In Independence Institute v. FEC, the court will review a constitutional challenge to laws establishing what kinds of pre-election candidate-related advertising counts as “electioneering communications” for the purposes of disclosure. Under current law, if a T.V. ad mentions a candidate and is run shortly before an election in that candidate’s district, the group funding it is supposed to disclose its identity and donors under FECA. These challengers seek to limit disclosure to only ads that explicitly call for the candidate’s election or defeat with “express advocacy” like “vote for” or “vote against.” But as the court has long recognized, that limitation would create an enormous loophole in the disclosure laws – and would deprive voters of vital information about those trying to influence their votes by financing these ads, preventing them from making informed decisions at the polls.
In Republican Party of Louisiana v. FEC, the Supreme Court will review a challenge to “soft money” restrictions on contributions to state parties passed as part of BCRA. Soft money are contributions to a political party that are not subject to federal contribution limits and source restrictions. In this soft money case, the Court has the opportunity to reinforce strong limits on money flowing into parties. Without such limits, the parties become a vehicle through which big donors seek to buy influence over their elected officials and to route more money to their preferred candidates in circumvention of the base limits on contribution to candidates.
The Supreme Court holds the keys to our democracy. It will continue to play a significant role in preserving the constitutional values of equality and justice for all.