Fortunately, it may not be necessary for the Court to fully adopt the equality rationale. Previous majorities of the Court embraced a far broader definition of corruption, which allowed political spending to be limited to prevent money from distorting political outcomes. In the Court’s most recent campaign finance ruling, McCutcheon v. FEC, the four dissenting justices upheld this view, and took it a step further. They argued that reasonable campaign finance regulations can be justified to ensure that elected officials are responsive to the concerns of the general public (not just a privileged few) and to protect the integrity of elections.
Regardless of what theory a future Court might embrace, Hasen is correct that as inevitable and permanent as the current system might seem, big change to our campaign finance laws in the near future is not only possible, but quite likely. Four of the Court’s nine justices will be over 80 during the next President’s term. The public – as demonstrated in polls, as well as the recent victories in Maine and Seattle – is looking for solutions that will return power to everyday Americans and break what many perceive as the stranglehold of the elite and super wealthy over our political system.
The question, then, for all Americans, not just five current justices on the Supreme Court, is what we want our democracy to look like. The 2016 presidential election offers voters a rare chance to have a meaningful say in answering this question – and Hasen’s book is a cri de coeur urging us all to make the most of it.