I have written this commentary for Politico magazine. Here’s a snippet:
How did Scalia eventually get his way on the question of how to balance First Amendment rights of free speech against strong government interests like preventing corruption or promoting political equality? It was not through a formal constitutional amendment, which would have required a supermajority vote in Congress and approval by three-fourths of the states. Instead, in 2006, the meaning of the Constitution changed in 2006 when Justice Sandra Day O’Connor, the crucial fifth vote to uphold reasonable campaign finance limits, retired and was replaced by Justice Samuel Alito. Alito, like Scalia, has never voted in favor of a campaign finance limit in his 10 years on the Court.
And just as the meaning of the Constitution turned on a dime with Alito’s confirmation, there are three ways it can do so again to allow reasonable limits on campaign money.
First, Obama nominates a new justice who gets Senate approval. The president has said he will nominate someone to replace Scalia. Anyone the president nominates, if confirmed, will likely vote the way his past nominees, Justices Sonia Sotomayor and Elena Kagan, have voted: in favor of reasonable limits.
Second, states challenge Citizens United before a new justice is confirmed. If Obama’s nominees are blocked (Senate Majority leader Mitch McConnell has already said he does not think there should be a confirmation in Obama’s remaining months), all is not lost. A brave federal circuit court or state Supreme Court might do what the Montana Supreme Court did soon after Citizens United: uphold corporate spending limits in state elections. The Supreme Court in a short opinion on a 5-4 vote smacked down the Montana Supreme Court, but it could not do the same today. A 4-4 tie in the Supreme Court keeps the lower court opinion in place, and that could, at least in some states, restore us to the pre-Citizens United era.
Third, the country elects a Democratic president—or maybe Trump. Campaign finance is an issue in the presidential election like it has never been before. Democratic candidates Clinton and Sanders have said overruling Citizens United will be a litmus test for their appointees to the Court. You can bet future Supreme Court nominees of Democratic presidents will be vetted closely on this issue.