69. Am. U. L. Rev. 1559 (2020).

* Professor of Law, Maurice A. Deane School of Law at Hofstra University. Thanks to Lindsay Wasserman for her keen and tireless research assistance. Nick Testa and Lauren Fitzsimmons also provided valuable contributions. This Article benefited greatly from the insights offered by fellow panelists at the January 2020 Symposium. Finally, gratitude is owed to James Sullivan and the staff of the American University Law Review for their exemplary work and professionalism. Any errors or shortcomings are mine.

In the decade since Citizens United v. FEC, which, while consequential in its own right, is also not responsible for all the ills attributed to it by its detractors, the Supreme Court has decided a stunning number of what this Article terms to be democracy cases. Each respective case is the subject of substantial scholarship within its sphere—voting rights, contribution limits, public financing, partisan gerrymandering, federal bribery law, and subvariations of each area—Decade of Democracy’s Demise seeks to remove that scholarship from the respective topical silos, and to develop and analyze a heretofore scarcely considered composite.

This Article contends that in democracy cases, the judicial minimalists on the Court have actually engaged, during the decade, in extensive judicial fact finding in order to justify their legal conclusions. In several of these cases the Court has shown a willingness to ignore the legislative fact findings of Congress (reflected in the McCain-Feingold legislation struck down in both Citizens United and McCutcheon v. FEC and in the re-authorization of the Voting Rights Act in Shelby County); and of state courts and legislatures (reflected in American Tradition Partnership v. Bullock and Arizona Free Enterprise v. Bennett). Indeed, within the democracy arena, the Court has deferred to legislative fact finding basically only when the fact-finding body was itself hostile to participatory democracy, and actually acted upon that hostility. Examples of this antiparticipatory deference include the Husted voter purge, the Crawford v. Indiana decision in 2008 that, while technically outside the defined decade, spawned numerous carbon copy voter ID laws in states around the nation, and the deference to legislative redistricting measures that, in the instances of Maryland and North Carolina, are not only inconsistent with one-person, one-vote norms, but are openly and transparently acknowledged by their progenitors to be so.

The Decade of Democracy’s Demise asserts that while the short-term impact of the Court’s decisions in the last decade skews in a favorable direction for conservatives, the long-term impact is not necessarily favorable to either political party, so much as it favors politically and financially empowered interests who seek to employ that empowerment so as to exacerbate their antidemocratic advantages. While this dynamic is temporarily good news for conservative partisans, it may, at some future juncture be good news for liberal partisans (although historically, at least since the Civil Rights era, they are less inclined towards antiparticipatory measures), but more importantly than any partisan valence, this Article asserts that the broader consequences for American democracy are grim indeed.

Introduction

[T]he Court has fully turned its back on that which I think it has a primary responsibility to protect, and that’s our electoral system.

—Former Attorney General Eric Holder1Liam Chalk, Former A.G. Eric Holder Advocates for SCOTUS Terms Limits, Blasts Barr at Pomona Talk, Student Life (Feb. 18, 2020, 11:38 AM), https://tsl.news/eric-holder-payton-lecture [https://perma.cc/2Z7C-ZTC2].

 

The year 2020 is the ten-year anniversary of the Court’s controversial Citizens United v. FEC 2558 U.S. 310 (2010). decision. Regrettably, this Article asserts that, beginning with Citizens United, the Court’s decisions in the prior decade have, in the aggregate, dramatically harmed representation-reinforcing values in our democratic processes. Moreover, this Article asserts that the Court majority has aggressively substituted its own fact finding when faced with legislative measures that favor participatory and equality values. However, the Court majority has shown great deference to legislatures when considering measures that are, on their face, hostile to participation and equality. While it is impossible to prove a results-oriented motive for the discrepancy, this Article ultimately contends that it is difficult not to find a brazen lack of intellectual consistency in this line of decisions.

In perhaps the most striking example of this discrepancy, the majority in Shelby County v. Holder3570 U.S. 529 (2013). discarded decades of Congressional findings on the continued necessity of preventive ex ante safeguards in the Voting Rights Act.452 U.S.C. § 10301 (Supp. 2018). Then, in Husted v. A. Philip Randolph Institute,5138 S. Ct. 1833 (2018). the Court emphatically accepted the findings by Congress to justify an Ohio voting purge, with Justice Alito arguing with nary a hint of irony that, “[i]t is not our prerogative to judge the reasonableness of that congressional judgment.”6Id. at 1848.

Some argue that one aggregate effect of the decade of decisions has been an erosion of public trust in the Court, although hard to measure and far from the most consequential of the effects.7Alan Brownstein, Supreme Court Rulings Come at a Cost in Public Confidence, Hill (June 5, 2019, 11:00 AM), https://thehill.com/opinion/judiciary/446936-supreme-court-needs-to-consider-cumulating-constitutional-costs [https://perma.cc/YS7B-DA3T]. Alan Brownstein asserts that the impact of these recent decisions

is to cumulatively increase the influence of the wealthy and powerful in the electoral process and to facilitate actions by current government officials to manipulate electoral rules and practices in ways that entrench their party’s status, and correspondingly, to undermine the confidence of the American people in the political system.8Id.

While preserving the capital of public trust in the Court is important, the focus of this Article is the more tangible consequences for rank-and-file representation-reinforcing norms. In the span of a decade, a majority of the Court has imposed its will on nearly every major element of our democratic processes: from voting to gerrymandering to campaign finance and even to bribery and misconduct. In these decisions, the Court majority systematically disregarded legislative will at their leisure and replaced it with their own judgment of fairness and societal need. During the past decade, the Court consistently rejected legislative attempts at equalizing access to democracy, dismissed attempts by Congress to target quid pro quo corruption, narrowed the definition of quid pro quo public corruption to the eye of a needle, and rolled out the red carpet for partisan gerrymandering. Even more consequentially, there is a snowball effect at play: the decade of new high Court precedent in the areas of campaign finance and voting rights gets extended yet further as waves of more and more conservative justices join the federal bench.9See Dahlia Lithwick, Democrats Still Haven’t Learned Their Lesson About the Courts, Slate (Aug. 1, 2019, 6:06 PM), https://slate.com/news-and-politics/2019/08/ democrats-courts-what-will-it-take-debates-election-2020.html [https://perma.cc/2GNN-T683]. Despite this, there is a surprising amount of apathy on the political left regarding the courts.10Id.

Part I of this Article details the major Supreme Court decisions of the past decade dealing with campaign finance regulations, public financing, and a high-profile consideration of a gubernatorial bribery charge. Part II considers the Court’s decisions in the areas of voting rights, voter suppression, and partisan gerrymandering.

I. Key Campaign Finance and Bribery Decisions

A. Citizens United v. Federal Election Commission

In 2010, the United States Supreme Court decided Citizens United v. FEC.11558 U.S. 310 (2010). As Alicia Bannon posits, Citizens United is one of “the rare Supreme Court decision[s] that many non-lawyers know by name.”12Alicia Bannon, Judicial Elections After Citizens United, 67 DePaul L. Rev. 169, 174 (2018). The Court’s five-to-four decision garnered widespread notoriety as the majority struck down a federal ban on corporate independent expenditures,13Citizens United, 558 U.S. at 337–39. in turn overruling decades of precedent, disregarding landmark campaign finance legislation, and ultimately ushering in the decade of democracy’s demise.

At issue in Citizens United was a corporation’s right to use its general treasury funds to make election-related independent expenditures.14See id. at 320–21. The origin of this case can be traced back to January of 2008, when Citizens United, a nonprofit corporation, released a ninety-minute documentary entitled Hillary: The Movie, which provided a critical review of Hillary Clinton, then candidate for the Democratic presidential nomination.15Id. at 319–20. Citizens United initially released Hillary in movie theatres and on DVD, but in an effort to expand its exposure, Citizens United sought to use its general treasury funds to make Hillary available through video-on-demand within thirty days of the 2008 primary elections.16Id. at 320–21. Citizens United subsequently produced advertisements to run on broadcast and cable television in order to promote the release of its documentary.17Id. at 320.

However, this tactic directly violated The Bipartisan Campaign Reform Act of 2002 (BCRA),18Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 a landmark piece of legislation that Congress enacted to address large contributions made by corporations and unions to political campaigns.19Brief for the Federal Election Commission at 10–11, McConnell v. FEC, 540 U.S. 93 (2003) (No. 02-1674). The purpose of § 441b was to limit the creation of “sham issue ads” that were produced to evade existing campaign finance laws. The ads, created primarily by corporations and unions, would ordinarily focus on a named candidate and aim to influence both elected officials and the electorate. Congress ultimately found that the paper trail left behind by these ads indicated that their true purpose was to influence elections, rather than educate the public on social issues. This was supported by the fact that the corporations and unions behind these ads hired campaign consultants to devise messaging and even had the ads poll tested by professionals. These ads typically aired in the days directly leading up to an election and ceased promptly after Election Day—clearly intended to impact the upcoming election. The BCRA thus created time-based restrictions of thirty and sixty days before an election to only bar those sham ads which were intended to influence federal elections. A provision at the heart of the BCRA, § 441b, specifically sought to prohibit corporations and unions from using their general treasury funds to make independent expenditures for speech that is considered an “electioneering communication,”202 U.S.C. § 441b (2012) (current version at 52 U.S.C. § 30118 (Supp. 2018)). The Act defined an electioneering communication as “any broadcast, cable or satellite communication which refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election or 60 days of a general election. 2 U.S.C. § 434(f)(3)(a). or speech that expressly advocates the election or defeat of a particular candidate.21§ 434(f)(3)(a).

Citizens United brought suit against the FEC seeking injunctive and declaratory relief out of concern that it risked receiving penalties for violating § 441b.22Citizens United, 558 U.S. at 321. The district court denied this motion for a preliminary injunction and granted summary judgment to the FEC, subsequently leading Citizens United to appeal to the Supreme Court.23Id. at 322.

When the case came before the Court, the Justices were tasked with determining whether § 441b’s prohibition on corporate independent expenditures was unconstitutional as applied to Hillary.24Id. at 322, 324. However, the Justices went on to declare that in the exercise of judicial responsibility, the Court must consider the facial validity of § 441b because it could not resolve the as-applied challenge on narrower grounds without “chilling political speech.”25Id. at 329.

In a broad ruling, the Court struck down § 441b’s ban on corporate and union independent expenditures, opining that § 441b’s prohibition is an outright ban on speech, and as such, is in violation of the First Amendment.26Id. at 337. Writing for the majority, Justice Kennedy determined that the First Amendment does not allow the viewpoints of certain subjects, such as wealthy corporations, to be disfavored. Thus, the majority resolved, any restriction, such as § 441b, that allows speech by some and not others is impermissible.27Id. at 340–41.

In reaching this conclusion, the majority rejected several compelling interests advanced by the government in support of restrictions on unlimited corporate spending in the electoral context.