Democrats' Supreme Court Litmus Test: Citizens United

O'Malley, Clinton and Sanders suggest they'd appoint justices who'd overrule the 2010 ruling that upended campaign finance regulations.

Martin O'Malley, former governor of Maryland, speaks while announcing he will seek the Democratic presidential nomination at Federal Hill Park in Baltimore, Maryland, U.S., on Saturday, May 30, 2015. O'Malley said he will seek the Democratic nomination for president in 2016, launching a long-shot challenge against front-runner Hillary Clinton.

Andrew Harrer/Bloomberg *** Local Caption *** Martin O'Malley

In past presidential elections, Supreme Court litmus tests were a Republican issue, with candidates vying for the evangelical vote by attacking the Roe v. Wade ruling that legalized abortion nationwide. This year, Democrats have a litmus test of their own: All four of the party's declared presidential candidates are suggesting they'll seek Supreme Court nominees who want to overturn Citizens United.

Martin O'Malley on Wednesday became the latest contender to jump aboard the bandwagon. In an interview with Bloomberg, he made it clear he will try to engineer a reversal of the landmark 2010 ruling, widely blamed for a new wave of big money in politics. The 5-4 ruling, which pitted justices appointed by Republican presidents against those appointed by Democrats, paved the way for super PACs and unlimited spending by corporations and unions to influence elections. In the 2014 election cycle, super PACs -- entities that can raise and spend political money in unlimited amounts -- raised close to $1 billion  to influence Senate and House elections, according to the non-partisan Sunlight Foundation. 

"I would appoint judges who don't think corporations are people. We need to overturn Citizens United," the former Maryland governor said after a Washington event hosted by the Hispanic Chamber of Commerce. "And we need to recognize that big money is having a corrupting influence on our politics."

Vermont Senator Bernie Sanders, long a vociferous opponent of the 2010 ruling, kicked off the debate May 10 in an interview on CBS. "If elected president," he said, "I will have a litmus test in terms of my nominee to be a Supreme Court justice and that nominee will say that they are going to overturn this disastrous Supreme Court decision."

One week later, Democratic front-runner Hillary Clinton told activists in Mason City, Iowa that the Citizens United ruling was "a grave error" by the Court. "I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections," she said.

Lincoln Chafee, the former Rhode Island governor and U.S. senator who launched his campaign for the Democratic presidential nomination earlier this week, echoed his rivals' views in a statement emailed to Bloomberg Thursday afternoon. "I believe Citizens United should be overturned and as a U.S. senator, I voted against Sam Alito," Chafee said. Justice Samuel Alito, a George W. Bush appointee,  was one of the high court's five votes in the Citizens United majority. (Then a Republican, Chafee was the only member of Bush's party in the Senate to vote against confirming Alito.)

A nationwide poll released this week by the New York Times found that a whopping 84 percent of Americans think money has "too much" influence in political campaigns. The survey found that 78 percent said political spending should be limited, while 19 percent said it should remain unlimited.

The Citizens United decision, prompted by a legal challenge to a documentary that took aim at Hillary Clinton during her 2008 presidential bid, has long drawn the ire of progressive activists and campaign finance reformers, upset over the seven-figure political donations it has enabled. It has sparked calls for a constitutional amendment to overturn the decision, an idea that has lacks support from congressional Republicans.

In Citizens United v. FEC, the justices overturned a provision of the 2002 Bipartisan Campaign Reform Act and struck down limits on political spending by corporations, unions and nonprofit groups as a violation of the First Amendment. Those groups can now give unlimited amounts to influence an election as long as they don't coordinate with the candidates themselves. In practice, however, most of the big-spending committees are closely linked to candidate committees. The court followed up in the 2014 McCutcheon v. FEC ruling by invalidating limits on the aggregate amount that people can give to candidates and political committees in a two-year election cycle.

Caroline Fredrickson, the president of the American Constitution Society, a progressive legal advocacy group, said the backlash has echoes of how conservatives responded to the 1973 Roe ruling, which remains deeply divisive today.

"I think it's happening," she said. "Whether it'll reach the level of fervency of Roe v. Wade, it's hard to say. But it certainly seems to be going in that direction."