Ron Fein: A Democracy Agenda for a Post-Scalia Supreme Court

Last month’s unexpected death of Justice Antonin Scalia has created an opportunity to undo the Supreme Court’s decisions that have expanded the influence of wealthy political donors. With the Supreme Court opening, we have a rare window to restore the basic principle of democracy, “one person, one vote.”

Today in The Hill, Ron Fein writes about an “emerging pro-democracy litigation strategy” to challenge the influence of unchecked political spending.  Fein explains,

Some advocate an incremental, go-slow approach. In the months to come, they argue, we should focus on the pipeline of cases that were already scheduled to come to the Supreme Court, and perhaps hope for favorable language from a four-justice bloc in tied decisions without any precedential value. In the medium term, they say, we should focus on filing supportive friend-of-the-court briefs when wealthy donors challenge existing campaign finance laws. And someday—not now or anytime soon, but all in due course in the fullness of time—we can discuss fundamental reform.

But others believe that now is the time to develop bold new initiatives, including test cases and game-changing affirmative impact litigation, that challenge the role of big money in politics.

The emerging pro-democracy litigation strategy has five key elements: end super PACs; get big money out of judicial elections; strengthen state and local “clean election” laws; overturn Citizens United; and overturn the 1976 Buckley v. Valeo decision that held that the wealthy have a constitutional right to spend unlimited amounts of money to influence our elections.

Those on the side of litigation see this approach as a means to correct the theory set forth by the Court’s 1976 Buckley decision, while fighting to restore political equality.

The time to build a pipeline of test cases is now. Litigation can take years to develop and progress before it reaches the Supreme Court. When the pro-reform majority is ready, we need to have cases ready for them. This isn’t an abstract matter—people are suffering from the effects of plutocracy, in our walletsjustice systemenvironment, and even quality standards for children’s surgery. In the words of the Reverend Dr. Martin Luther King Jr., “[t]here comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair.”

We’re in a “constitutional moment,” an inflection point where business-as-usual gives way and a go-slow, incrementalist approach falls out of step with the times. Modest, low-hanging tweaks, such as improving disclosure laws, may be worthy policy objectives, but they won’t harness the tremendous popular hunger for fundamental change.

We have all the tools we need to move forward. We have years of scholarshiptheorizing, and amicusbriefs, and a “jurisprudence in exile” of minoritydissents that could easily turn into majority opinions. Most importantly, we have the wind of the public at our back. It’s time to take this fight to the courts.

To read the article in full on The Hill, click here.

 

 

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