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Yesterday, the United States Supreme Court heard oral argument in Citizens United v. FEC. We reported earlier that we joined Justice At Stake and 18 partners in submitting an amici brief in the case, which focuses on restrictions on corporate contributions in elections.  Gavel Grab has extensive coverage of the argument here.

Justice At Stake Executive Director Bert Brandenburg offers an interesting commentary about the case on the blog of the American Constitution Society.  Brandenburg notes:

Just three months ago, the U.S. Supreme Court reached a historic conclusion in Caperton v. Massey. The majority held that the Constitution sets limits on how much special interests can tilt the scales of justice, by requiring judges to step aside in certain case involving their supporters.

Just three months later, Citizens United v. the Federal Election Commission, the campaign finance case argued today, has seemed to float in an alternate universe. . . .

A comparison of the cases is revealing. While Caperton focused on the courts, its gritty facts should strip away any glossy illusions about what will happen if corporate and union treasuries are turned into private campaign war chests.

Brandenburg goes on to compare the arguments made in both cases, noting that former Solicitor General Ted Olson who argued on behalf of Caperton earlier this year at that time opined that “‘The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.’” Yesterday, Olson argued on behalf of Citizens United and opined that “with independent groups, ‘there is less of a threat of corruption because there is no quid pro quo.’”  Brandenburg notes that it is very difficult to square these positions and concludes by posing this chilling hypothetical:

[T]hree Americans in four believe campaign cash affects courtroom decisions. If the federal ban is struck down, similar state laws will be next.

If anyone wonders whether that will have a real-world effect, they should look at Caperton once more and ask this: What if Don Blankenship, the coal executive with litigation in West Virginia, hadn’t been forced to spend from his own pocket? What if he could have just cut a company check to underwrite an election? And what if an unwise ruling makes that the norm, not the exception?

As we wait for a decision in Citizens United, it might be a good time to think about how much worse the situation could become and to ask again why we continue to select judges by a process that requires them to raise campaign funds from individuals and entities likely to appear before them in the future.

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