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Will election excess lead to campaign finance changes?

This article first appeared in the St. Louis Beacon, Nov. 9, 2012 - As predicted, the much-maligned Citizens United  Supreme Court decision helped unlock hundreds of millions of dollars in unlimited campaign spending in the $6 billion 2012 election, much of it in support of Gov. Mitt Romney and Republican Senate candidates. But contrary to expectations, the money almost entirely failed to elect the candidates it supported.

More than $386 million was spent by wealthy Republicans to back Romney in his losing effort. Casino billionaire Sheldon Adelson, who wasted tens of millions of dollars on Newt Gingrich in the primary, doubled down on Romney and lost tens of millions more. Not exactly a great betting record for a casino mogul.

Karl Rove's super PACs spent $300 million, much of it on Republican Senate candidates who lost. The poor return on his investment might account in part for his vituperative appearances on Fox complaining about the network calling the election for President Barack Obama and then arguing that the result had come from Obama's suppressing the vote.

One little noticed fallout of the election is that 2012 could be the last presidential election in which Citizens United money floods into the campaign. If either of the 74-year-old conservative justices on the court - Antonin Scalia or more moderate Anthony Kennedy - retires during President Obama's term, the court could reverse Citizens United. The liberal dissenters made clear when the decision was issued in 2010 that they did not accept its reasoning.

In the 5-4 Citizens United decision written by Justice Anthony Kennedy, the court ruled that corporations had a First Amendment right to spend unlimited funds in support of a candidate's election. Federal campaign laws previously had prohibited that spending.

Under normal circumstances, the court would be leery of overruling precedent. But Justice John Paul Stevens, who wrote the dissenting opinion, accused the majority of abusing the court's power and itself overruling two precedents to reach the Citizens United result. Stevens wrote that the court had reached out to decide a broad issue that wasn't even before it and had ignored a century of history in the process.

'The only relevant thing that has changed" since the court's earlier precedents, wrote Stevens, "is the composition of this Court." Justice Samuel Alito had replaced Justice Sandra Day O'Connor, tipping the court from 5-4 in favor of campaign finance laws to 5-4 against.

Because the majority in Citizens United was cavalier with precedent, it is possible that the dissenters would be quick to dispatch Citizens United and return to the older precedents it had toppled. Several things would have to happen first - the retirement of one of the conservatives plus the confirmation of a reliable liberal likely to join in overturning Citizens United.

Even without Citizens United, however, don't expect big money campaigns to go away. The media have exaggerated how much Citizens United changed the campaign finance landscape. Even before it was decided, rich campaign supporters had long been able to spend millions on behalf of independent advertising campaigns in support of candidates. The Swift Boat Veterans for Truth ad campaign distorting John Kerry's war record was a pre-Citizens United example of how wealthy individuals could spend big money to elect candidates.

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