Money in Politics Is Not the Supreme Court’s to Decide

The people — not judges — should have the last word on our democracy

By Jeff Clements

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In 2021, the people of Maine found themselves in the middle of a fierce political battle. The question was whether a 145-mile transmission corridor designed to carry hydropower from Quebec into Massachusetts should be allowed to run through the state. Some Mainers supported the project; others opposed it.

But local voices were soon drowned out by a tidal wave of outside spending. Energy companies and electric utilities on both sides of the fight — including foreign-government-owned entities — spent nearly $100 million trying to shape the outcome of the ballot fights related to the corridor.

In response, Maine voters and lawmakers tried to reassert control over their own elections. The state enacted measures barring foreign-government-influenced companies from spending in state elections and later passed a bipartisan law limiting contributions to political action committees to $5,000. But the limits voters and lawmakers fought and organized for didn’t survive — federal courts struck down both efforts, citing Supreme Court precedent that protects political spending as First Amendment activity.

The same story has played out time and again across the country. Lawmakers and ordinary citizens respond to how elections are changing — the hundreds of millions of dollars spent, the dark money flowing in from unknown interests — and they decide to do something about it. Then a federal court steps in.

Soon, the Supreme Court will decide National Republican Senatorial Committee v. Federal Election Commission, one of the most closely watched campaign finance cases to reach the Court in years. The case asks whether federal limits on spending coordinated between political parties and candidates violate the First Amendment — a technical-sounding question with real-world implications.

Reasonable minds can disagree about whether the federal laws at issue are effective, or even necessary. But there’s a far bigger, more consequential question at stake in this case: Why is the Court involved in this dispute in the first place? Should our elections be regulated by a handful of federal judges — or by voters and their elected representatives?

For most of American history, the answer was clear: we the people, and the representatives we elect. The Court’s meddling in our nation’s campaign-finance policy is a fairly modern invention, and it ignores two centuries of our history.

Thankfully, the Constitution gives us a way to answer back.

Democracy before Buckley

Americans have long debated how to keep our elections free, fair, and insulated from corruption. These questions were debated and addressed in legislatures around the country — and not once in our first 200 years did the Supreme Court strike down any state or federal law concerning money in politics.

This judicial restraint was well rooted in founding-era philosophy. Courts were meant to serve as a check, not a substitute, for representative government, stepping in only when lawmakers made an egregious, unjustifiable error or clearly defied the expressed will of the people. They were never meant to referee routine disagreements over policy.

That all changed in the 1970s. In 1971, bipartisan supermajorities in Congress passed the Federal Election Campaign Act (FECA) in response to growing public concern about money in politics. The law strengthened federal campaign-finance rules at a time when modern campaigns were becoming more expensive and media-driven, and voters had limited ability to know who was financing federal elections. President Richard Nixon signed the bill into law, and the core provisions were further strengthened in 1974 after the Watergate scandal. President Gerald Ford backed the updated version — which included new limits on contributions, independent expenditures, and self-funding — acknowledging the “unpleasant truth” that “big money influence has come to play an unseeming role in our electoral process.”

But those reforms did not stay in the hands of Congress for long. They were soon challenged in Buckley v. Valeo, the 1976 case in which the Supreme Court first began to depart from that long tradition of judicial restraint — setting in motion 50 years of court-made rules over how money functions in our elections.

The road to Citizens United

Buckley was brought by Sen. James Buckley, then a US Senator from New York, and others who argued that FECA’s limits on campaign contributions and spending were a restriction of free speech. At first, the core provisions of FECA seemed likely to withstand the claims brought in Buckley: in 1975, the United States Court of Appeals upheld the law, writing that it would be “strange indeed” if “the wealthy few could claim a constitutional guarantee to a stronger political voice than the unwealthy many.”

A year later, the Supreme Court disagreed, setting a radical new precedent in the process.

For the first time in American history, the Court ruled that political spending was a protected form of free speech; limits on spending amounted to limits on expression. With that precedent, the Court effectively appointed itself the nation’s final authority on all questions of campaign finance and corruption.

The Court has been increasing its power (and compounding its error) ever since. Citizens United, the 2010 decision that expanded on Buckley by permitting unlimited political spending by corporations and unions, is the most famous example, but it is far from the only one. Again and again, federal courts have used the First Amendment as a pretext to strike down commonsense laws passed by Congress and the states — from contribution and spending limits to anti-corruption safeguards and state efforts to protect elections from foreign-influenced money.

Every few years, a new case; every few years, another guardrail is dismantled. The result is a steady transfer of authority away from voters, Congress, and the states and toward lawyers, litigants, and courts — changing not only campaign-finance law but the relationship between voters and the institutions meant to represent them. The results have been disastrous.

Elections for sale

Since Buckley, the cost of winning elected office has exploded.

In 2024, almost $20 billion was spent across local, state, and federal races. The next year, a single judicial seat in Wisconsin drew more than $100 million in spending, much of it from out-of-state actors. Indeed, nearly 80% of 2024 campaign contributions came from just over 1% of the population; last cycle, nearly one-fifth came from just 300 families. Much of that money moves through super PACs, dark-money nonprofits, and other intermediary groups that can obscure the original source of funding — making it nearly impossible for voters to know who is really trying to shape elections.

But the damage is not measured in dollars alone. When voters see elections shaped by vast sums of money they cannot trace and voices they cannot identify, it corrodes their confidence that the system is still working for them. The rise of big money crowds out free speech, stifles competition, and suppresses meaningful debate; it stokes anger, cynicism, division, and gridlock. It’s no wonder only 17% of voters trust the federal government to do the right thing, while more than 80% say the influence of money in politics is a threat to our elections.

Many elected leaders have tried to respond to the crisis, most notably in the states. But nearly every meaningful attempt at the state and local level to set some rules has faced litigation, and laws in dozens of states have been struck down: spending limits, disclosure rules for dark-money groups, bans on corporate and foreign money alike.

It’s not just new attempts at reform. Montana offers a stark example.

For generations, Montana had some of the strongest anti-corruption laws in the country. In the 1890s, a group of mining barons known as the “Copper Kings” used money to bend the government to their will — through massive campaign contributions, political pressure, and, when necessary, outright bribery.

One of them, William Andrew Clark, eventually bought a US Senate seat by distributing $272,000 to state lawmakers responsible for picking the senator. This was before the ratification of the 17th Amendment in 1913, when Americans established the direct election of senators.

By the early 1900s, Montana voters had had enough. They passed the Montana Corrupt Practices Act in 1912. It banned corporations from dropping money into elections. That rule remained in force for nearly a century.

After Citizens United extended Buckley’s money-as-speech theory to corporations and unions, Montana tried to defend its law by its hard-earned history. The Montana Supreme Court upheld the law, but the Supreme Court disagreed. And they didn’t even bother hearing oral arguments.

They dismissed 100 years of Montana’s history with a one-paragraph, two-sentence decision on the basis of Buckley and Citizens United.

Nobody voted for this system. We did not choose to submit ourselves to rule-by-judges. But we are not powerless.

The way back

When Americans disagree with the Supreme Court’s interpretation of the Constitution, we are not stuck with that interpretation forever. Article V offers a way for voters and their representatives to have the final word: amendments proposed by Congress and ratified by the states. We have used that remedy on eight occasions when the Court was out of step with Americans on issues like state sovereignty, slavery, taxation, and voting rights. Again and again, amendments have restored authority to the people when judges moved in the wrong direction.

That is the mission of American Promise, an organization I cofounded in 2016. We’ve built a nationwide movement behind the For Our Freedom Amendment, a measure that would restore the ability of state and federal lawmakers to set reasonable rules around political spending. It would not mandate any particular contribution limits, disclosure rules, or regulatory framework. It would simply return these questions to voters and their elected representatives — where they belonged for nearly two centuries.

There have been serious legal efforts to persuade the Court to revisit the Buckley-Citizens United campaign-finance doctrine, but these have hit dead ends. In several decisions after Citizens United, the Court made it clear that the Justices would not reconsider their approach. Some future, different Court is always possible, but Americans are dealing with the grave consequences of systemic corruption now. Even another 5–4 decision one way or the other leaves the power to decide the rules in the hands of judges rather than the people.

The core constitutional question about money in politics now is, Who makes the rules? Since the Buckley case 50 years ago, the Court has said lawyers and judges make the rules. The result has been a disaster for American representative government. Only a constitutional amendment can get the question of who decides right: the American people and our representatives in the states and Congress.

To many Americans, amending the Constitution can sound impossible — especially in a divided country. But that skepticism is not new, and our history should encourage us. In 1899, The Washington Post declared the Constitution “practically unamendable.” Fourteen years later, the nation ratified two major Progressive Era amendments.

Amendments have often come at moments much like the one we are experiencing now: after long periods of public frustration, institutional strain, and a growing demand for structural change. That pattern is beginning to emerge again. Twenty-five states — from Vermont and California to Utah and Montana — have now formally called on Congress to advance an amendment addressing the crisis of money in politics.

The most recent states to formally back the constitutional-amendment solution include Oklahoma and Idaho, and support continues to grow as lawmakers across the political spectrum come to recognize that our current system serves all the wrong people and interests.

NRSC v. FEC is not the last campaign-finance case the courts will hear. But the end of this story will not be written in a courthouse. It will be written by Americans working through their states, their representatives, and the amendment process itself to return these questions to where they belong.

Jeff Clements is co-founder and CEO of American Promise, the cross-partisan nonprofit advancing the national effort to pass a constitutional amendment addressing money in politics.