The U.S. Supreme Court has vastly reshaped American democracy — rolling back voting rights, enabling secret money in politics and expanding presidential power. These decisions have a real impact on all Americans by making it harder for citizens to exercise their freedom to vote, easier for wealthy interests to sway elections and more difficult to hold leaders accountable. In this episode, we unpack the real-world impact of landmark Supreme Court decisions and explore what reforms could restore balance, accountability and trust in the Court.
The U.S. Supreme Court has vastly reshaped American democracy — rolling back voting rights, enabling secret money in politics and expanding presidential power. These decisions have a real impact on all Americans by making it harder for citizens to exercise their freedom to vote, easier for wealthy interests to sway elections and more difficult to hold leaders accountable.
In this episode, host Simone Leeper speaks with law professor and co-host of the Strict Scrutiny Podcast Leah Litman, Campaign Legal Center Senior Vice President Bruce V. Spiva and Campaign Legal Center Campaign Finance Senior Counsel David Kolker. Together, they unpack the real-world impact of landmark Supreme Court decisions — from voting rights cases like Shelby County v. Holder and Brnovich v. DNC to campaign finance rulings like Citizens United — and explore what reforms could restore balance, accountability and trust in the Court.
Timestamps:
(00:05) — What do Americans really think about the Supreme Court?
(02:18) — Why does the Supreme Court’s power matter for democracy?
(07:01) — How did Shelby County v. Holder weaken voting rights?
(16:39) — What was the impact of Brnovich v. DNC?
(23:39) — How has the Supreme Court reshaped campaign finance?
(29:24) — Why did Citizens United open the floodgates for money in politics?
(32:37) — How have super PACs changed elections?
(34:02) — How have wealthy special interests reshaped U.S. elections?
(35:44) — What does presidential immunity mean for accountability?
(37:30) — How do lifetime seats protect the Supreme Court from accountability?
(39:22) — What role can Congress play in restoring trust and democracy?
Host and Guests:
Simone Leeper litigates a wide range of redistricting-related cases at Campaign Legal Center, challenging gerrymanders and advocating for election systems that guarantee all voters an equal opportunity to influence our democracy. Prior to arriving at CLC, Simone was a law clerk in the office of Senator Ed Markey and at the Library of Congress, Office of General Counsel. She received her J.D. cum laude from Georgetown University Law Center in 2019 and a bachelor’s degree in political science from Columbia University in 2016.
Leah Litman is a professor of law at the University of Michigan and a former Supreme Court clerk. In addition to cohosting Strict Scrutiny, she writes frequently about the Court for media outlets including The Washington Post, Slate, and The Atlantic, among others, and has appeared as a commentator on NPR and MSNBC, in addition to other venues. She has received the Ruth Bader Ginsburg award for her “scholarly excellence” from the American Constitution Society and published in top law reviews. Follow her on Bluesky @LeahLitman and Instagram @ProfLeahLitman.
Bruce V. Spiva is Senior Vice President at Campaign Legal Center. He is an attorney and community leader who has spent his over 30-year career fighting for civil rights and civil liberties, voting rights, consumer protection, and antitrust enforcement.
Over the past three decades, he has tried cases and argued appeals in courtrooms across the country, including arguing against vote suppression in the United States Supreme Court in 2021. In 2022, in his first run for public office, Bruce mounted a competitive run in the primary election for Washington, D.C. Attorney General.
In addition to founding his own law firm where he practiced for eleven years, Bruce has held several leadership and management positions as a partner at two national law firms. Most recently, Bruce served as the Managing Partner of the D.C. Office and on the firm-wide Executive Committee of Perkins Coie LLP, where he also had an active election law practice. He first-chaired twelve voting rights and redistricting trials across the country, and argued numerous voting rights appeals in U.S. circuit courts and state supreme courts during his tenure at Perkins.
David Kolker is Campaign Finance Senior Counsel at Campaign Legal Center. He focuses on both short- and long-term strategies to improve campaign finance laws across the country, and precedent interpreting those laws. David has spent decades litigating cases in both the public and private sectors.
He worked for nearly 20 years at the Federal Election Commission, where he litigated cases on federal campaign finance law and for several years led the agency’s Litigation Division. He represented the government in dozens of oral arguments, including the government’s defense in SpeechNow.org v. FEC before the D.C. Circuit sitting en banc. He litigated many cases decided by the Supreme Court, including the landmark cases of McConnell v. FEC and Citizens United v. FEC. David joined CLC from the Federal Communications Commission, where he served as the deputy bureau chief, Enforcement Bureau. He previously was a partner at the law firm Spiegel and McDiarmid in Washington. Early in his career, David worked as a trial attorney in the Civil Rights Division of the United States Department of Justice.
Links:
The Supreme Court Needs to Start Standing Up for Democracy – CLC
The Supreme Court's Role in Undermining American Democracy – CLC
Supreme Court’s Impact on Voting Rights Is a Threat to Democracy – CLC
Why the Current U.S. Supreme Court Is a Threat to Our Democracy – CLC
U.S. Supreme Court Reinstates Illegal Virginia Voter Purge at the Eleventh Hour – CLC
What Does the U.S. Supreme Court’s Recent Arizona Decision Mean for Voters? – CLC
Alito Flags the Fatal Flaw of the Supreme Court Ethics Code – CLC
U.S. Supreme Court Reinstates Illegal Virginia Voter Purge at the Eleventh Hour – CLC
Improving Ethics Standards at the Supreme Court – CLC
Supreme Court tossed out heart of Voting Rights Act a decade ago, prompting wave of new voting rules – The Hill
U.S. Supreme Court Significantly Limits Restraints on Unconstitutional Presidential Actions – CLC
Protecting the Promise of American Citizenship – CLC
Bringing the Fight for Fair Voting Maps to the U.S. Supreme Court – CLC
The Supreme Court Must Uphold Fair Voting Maps for Fair Representation – CLC
About CLC:
Democracy Decoded is a production of Campaign Legal Center, a nonpartisan nonprofit organization dedicated to solving the wide range of challenges facing American democracy. Campaign Legal Center fights for every American’s freedom to vote and participate meaningfully in the democratic process. Learn more about us.
Democracy Decoded is part of The Democracy Group, a network of podcasts that examines what’s broken in our democracy and how we can work together to fix it.
Brian: Does anybody know how many justices are on the Supreme Court?
Simone Leeper: The National Mall in Washington DC. No matter the time of year, there are always tourists taking in the sights, including the many impressive monuments to our democracy, like the Washington Monument, the Lincoln Memorial, the Martin Luther King Jr. Memorial, and the US Supreme Court building.
Brian: There are nine of them. There are nine members.
Simone Leeper: On this beautiful day in the nation's capitol, we wanted to ask everyday Americans visiting from across the country just what they think about the Supreme Court.
Brian: I feel that the Supreme Court could use far more oversight. For way too long, the Supreme Court has run on the honor system. And unfortunately we now find ourselves in a position where there are people who, well, you could argue are not acting in the most honorable of manner.
Simone Leeper: This is Brian. He's a professional tour guide in DC.
Brian: Supreme Court Justices, for lack of a better term, should not have sugar daddies. I don't think Supreme Court justices need to have billionaires. Because that's obviously a conflict of interest.
Lauren: I would say in the past few years they've seemed to veer away from being very impartial.
Simone Leeper: And this is Lauren. She's from Tallahassee, Florida.
Lauren: Do I trust them? Great question.
Tanjam: I don't trust some of the justices. I think some of the justices are extremely good. I think some of the justices are being swayed.
Simone Leeper: This is Tanjam. She was in DC from nearby Silver Spring, Maryland.
Tanjam: I think they have their own ideas of how the different branches should come together, and I think they're acting on some presupposed erroneous assumptions.
Simone Leeper: Tanjam actually had one specific court decision she wanted to call out.
Tanjam: The presidential immunity decision, I think directly contravenes the Constitution. There's no two ways about it. So in that way, no, I don't think they're upholding our democracy.
Simone Leeper: The US Supreme Court holds immense power as the head of one of the three co-equal branches of government. But in recent years, the court has made a series of decisions that seem to undermine the rules upholding American democracy, and which have reversed decades of work by prior courts. And unlike members of the other two branches of government, justices aren't elected for a term a time. They instead are appointed for life after being nominated by the president and confirmed by Congress. But after that, there's little structure to hold them accountable when concerns arise. I'm Simone Leeper and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. I work for a nonpartisan organization called Campaign Legal Center, dedicated to solving the wide range of challenges facing American democracy. This season on Democracy Decoded, we are sounding the alarm. The American system of democracy needs urgent attention. Safeguards at the core of our democracy are being challenged or ignored, threatening our very form of governance. As a country, we arrived at this perilous moment gradually. No one person or single policy brought us here. Rather, as we will explain in this season, the system has eroded over many years. Cracks in the system like the ones we've explored over the past four seasons now have become huge chasms that are being exploited by bad actors. In the coming episodes, we will spotlight and propose solutions for some key factors in this deterioration. Those factors include massive campaign spending, corruption, executive overreach, gerrymandering, and attacks on the freedom to vote, all of which weaken our democracy. But we begin this season by examining an institution that increasingly sits at the center of many of the cracks in our system. It has cleared the way for secretive political donations. It has rolled back laws meant to protect voters. It has its own ethics problems. And pivotally, it is seemingly ignoring its own precedents to the detriment of our Constitution and the rule of law. As America searches for culprits behind our democracy's erosion, the Supreme Court deserves a hard look.
Leah Litman: Ideally, we could get a majority of likely voters to understand the vast expanse of power that the Supreme Court has come to possess in our constitutional democracy, and the ways in which they are exercising that power.
Simone Leeper: We're off the streets of DC now. Back in the studio, the voice you just heard belongs to Leah Litman, who formerly clerked for then Justice Anthony Kennedy, and is now a law professor at the University of Michigan. She's also one of the hosts of Strict Scrutiny, a popular podcast where she and fellow constitutional law professors, Melissa Murray and Kate Shaw break down Supreme Court decisions legally and clearly. In her latest book, Lawless, she writes that the current court runs on quote, " bad vibes," essentially issuing capricious decisions that serve a narrow set of political interests.
Leah Litman: By bad vibes, I mean to draw a pointed contrast with what a lot of people think of as law, something that's objective and determinant, and I try to show that actually the justices are infusing the law with their feelings or the political talking points of the Republican Party, even in some cases where the law I think is quite clear, they just do the opposite.
Bruce Spiva: This court, for one thing, is much more willing to break with historical precedent and to do so quickly.
Simone Leeper: And this is my colleague Bruce Spiva, an attorney and CLC's senior vice president.
Bruce Spiva: It also is not reluctant to create new doctrines even out of whole cloth, such as it did with the presidential immunity decision. And in my view, it's what it did when it decided Shelby County.
Simone Leeper: Bruce has spent more than 30 years fighting for civil liberties, consumer protections, and American's freedom to vote. In 2021, he argued before the Supreme Court to oppose voter suppression. Bruce just mentioned Shelby County v. Holder, a 2013 case in which the Supreme Court struck down key parts of the Voting Rights Act of 1965. That case remains a prime example of the court's recent ideological shifts. On the surface, it was executing its constitutional duty to interpret the law of the land, but its decision appeared to many experts to have been solved backwards, as if the court intended to roll back voter protections and sought to justify that outcome with paper thin legal rationale.
Leah Litman: Shelby County vs. Holder invalidated the pre- clearance process of the Voting Rights Act as it was structured.
Simone Leeper: Leah Litman once again.
Leah Litman: The pre- clearance process required certain states with especially bad histories of voter discrimination to obtain permission from the federal government before changing their voting laws or policies.
Simone Leeper: In 1965, Congress passed the Voting Rights Act to address widespread discrimination, such as poll taxes and literacy tests that many states used to prevent Black Americans and other historically disenfranchised groups from voting for nearly a century After the Civil War. One feature of the act was to require voting jurisdictions with a history of discrimination to get a sign off from the US attorney general or a federal court before changing their voting laws, that so- called pre- clearance was meant to keep states from unwinding voter protections.
Bruce Spiva: The 1965 Civil Rights Act covered certain states, certainly all those that are in the deep south, and that required those states, when they made changes to their voting laws, to get them approved by the Department of Justice, or to take it to court in the DC circuit and get it approved by the court. And this had a restraining effect. Oftentimes, DOJ would object to changes in voting laws that caused a retrogression or a stepping back, a curtailing of Black and Brown voters' voting rights. So sometimes states wouldn't even try to do it in the first place because they knew that they wouldn't be able to get it either pre- cleared by DOJ or approved by a three- judge panel in the DC circuit.
Simone Leeper: As Bruce suggests, the Voting Rights Act was working in large part without even causing a stir. States knew there was an extra layer of voter protections built into the system. Within a decade of the law's passage, Black voters' registrations increased exponentially. More Black and Latino candidates and others from historically underrepresented groups were holding public office as a result, and Americans repeatedly affirmed that they valued these protections. Congress amended or reauthorized the law on a bipartisan basis in 1970, 1975, 1982, 1992, and 2006. The Supreme Court in turn upheld challenges to those changes in 1973, 1980, and 1999. Then Alabama's Shelby County, one such jurisdiction covered by the law, sued the federal government. The county claimed it faced undue burdens because of discriminatory acts it had taken in the past, but which it claimed were no longer an issue. However, many would argue that this was in fact because the law was doing what it was supposed to do, preventing discriminatory voting laws from being implemented in the first place. Unfortunately, a 5- 4 Supreme Court majority decided in favor of Shelby County, ending the federal government's ability to automatically oversee changes to voting laws in jurisdictions that had racially discriminated against voters before 1965. Gone was pre- clearance and the protections it provided.
Leah Litman: The Supreme Court said that violated some magical principle called the equal sovereignty doctrine, which is, one, nowhere in the Constitution, two, utterly inconsistent with the history of Reconstruction, because John Roberts' majority opinion said it was a problem that Congress had treated some states differently than others. In particular, the former Confederacy.
Simone Leeper: Leah Litman once again.
Leah Litman: I have news for you John Roberts, in the aftermath of Reconstruction and the aftermath of the Civil War, Congress repeatedly treated the former Confederacy quite differently than the rest of the country and other states in the union. He said the Voting Rights Act was problematic because it tied whether a state was subject to pre- clearance to older voting data.
Simone Leeper: The majority decision written by Justice Roberts argued that in effect there was an existing legal precedent that prevented Congress from treating states differently. This so- called equal sovereignty doctrine meant Congress couldn't make different rules for different states. But-
Leah Litman: Only problem is the prior case that he cited said, that doctrine, the doctrine of equality of the states, equal sovereignty, does not apply outside of the terms on which a state is admitted to the union. What the prior case actually said is this doctrine doesn't tell Congress anything about what it can do after a state is part of the union. It merely constrains Congress from imposing particular conditions on a state's admission to the union. And so he inverted the meaning of that prior case, totally changed its meaning.
Bruce Spiva: I thought it was a terrible decision, an ahistoric decision. One of Chief Justice Roberts' lines, because he wrote the opinion, was that history did not stop in 1965. The point he's making is that there's been so much progress since 1965, and there really isn't that much discrimination.
Simone Leeper: Bruce Spiva again.
Bruce Spiva: In her dissent, Justice Ruth Bader Ginsburg said that, doing this, saying that you're going to get rid of this critical portion of the Voting Rights Act, was akin to throwing away your umbrella in a rainstorm because you're not getting wet. Literally the morning after the Shelby County decision, a state legislator in North Carolina said to the press that now we can go with the full bill. And he was referring to a whole slate of voting restrictions, changes to North Carolina voting law that they had not previously planned to pass because they knew they wouldn't be able to get it pre- cleared through DOJ. It had been just a very minimal voter ID bill. They then made the voter ID portion harsher, and then took away with what the Fourth Circuit later called surgical precision, a myriad of voting methods that were relied upon by Black and Brown voters. But that was only one of many laws that were passed in the wake of Shelby County that made it harder to vote. Very strict voter ID laws, laws that cut back on early voting, many laws that made it more difficult for Black and Brown folks to vote all around the country.
Simone Leeper: This Supreme Court ruling truly struck at what had become a bedrock principle of American democracy. Bruce believes the harm has continued to seep into American politics as well.
Bruce Spiva: What Shelby County wrought were all these discriminatory voting laws, but also it did another thing politically in the country, which is very pernicious. There had been a rare bipartisan consensus on the need for the Voting Rights Act and what a great success it was. When the act was up for reauthorization in 2006, it got 98 votes in the Senate, zero votes against. In the House, it got 390 votes, 33 votes against. And it was signed by a Republican president, George W. Bush. That's as close to unanimous as you get. Now years later, it has polarized the country. And you have much more difficulty getting new voting rights laws passed through the Congress. There've been many attempts to try to correct what the Supreme Court said was the problem with the coverage formula in the Voting Rights Act, the portion that it struck down in Shelby County, and all of those have failed because you can't get enough votes to pass it.
Simone Leeper: The Supreme Court followed its 5- 4 decision in Shelby County v. Holder with another voting rights bombshell eight years later. In 2021, the court ruled in Brnovich v. Democratic National Committee that Arizona laws that in practice made voting harder for many nonwhite voters did not violate the Voting Rights Act. In effect, the 6- 3 decision made it tougher for people to use the Voting Rights Act to challenge laws as discriminatory. In his former capacity as partner in the political law group at Perkins Coie, Bruce Spiva argued the case before the Supreme Court
Bruce Spiva: Brnovich arose out of two such laws that we challenged. If you voted in the wrong precinct, the State of Arizona would throw out your entire ballot. You might be in the wrong precinct say for your local school board member, but you're not in the wrong precinct by definition for governor if you're a resident of Arizona, you're not in the wrong precinct for president of the United States. And so there was really no justification for this, but this resulted in Latinos having their ballots not counted twice as often as white voters. We also challenged a very recent, at that time, law that banned the practice of ballot collection that is helping somebody else get their ballot to the polling place or to the mailbox. And this had a particular effect on the Native American lands which are vast in Arizona, where there isn't oftentimes outgoing mail. What came out of that decision unfortunately, where a couple of things that now make it even harder to enforce Section two of the Voting Rights Act. The court kind of froze in time voting practices that were acceptable in 1982 when Congress made clear that discriminatory effects alone are enough to prove a harm. But that's counter to the whole point of the Voting Rights Act. President Johnson, when he introduced the initial Voting Rights Act to the Congress, said that every device known to mankind that one can conceive has been used to deny this right. And so the point of the Voting Rights Act was to be able to capture new ways of discriminating at the onset and prevent them from going into effect, or to strike them down quickly. The other thing the court did is it said, you can look at these factors that I was talking about, but you really can't give them much weight.
Simone Leeper: The factors Bruce is mentioning can include important evidence like if a historically disenfranchised community seeking protections under the Voting Rights Act tends to be disproportionately low income, meaning they often have less access to post offices, transportation, and other things that make casting a ballot easier.
Bruce Spiva: So they said, well, because of that, we're not going to allow you to give them much weight. Which of course makes no sense because those are the very reasons that Congress said you should consider those factors because that's what tells you whether these things are going to have an impact and whether it's based on race, an impact in terms of making it harder for people to cast their vote and to have their vote counted.
Simone Leeper: The Shelby County decision and the Brnovich decision have acted as a one two punch that weakens the Voting Rights Act. Jurisdictions with a history of discrimination no longer have to get pre- clearance for their new voting laws. And if you want to challenge those laws, the burden is higher. We've seen states and counties reduce the numbers of polling places that serve historically disenfranchised communities and curtail access to early and mail- in voting.
Bruce Spiva: Although it has not wiped the Voting Rights Act entirely off the books, the Supreme Court has severely hampered enforcement of it. And it's a real shame because that was certainly one of the greatest anti- discrimination bills ever enacted in the history of this country.
Simone Leeper: Repairing such a foundational law and protecting access to the ballot will require a variety of efforts. Leah Litman wants to make more Americans aware that the Supreme Court is rolling back popular laws, canceling generations of work by a branch of government, Congress, whose members are elected directly by the American people.
Leah Litman: The Supreme Court has become so far removed from the people and so unconstrained in different ways, whether that's through Congress, whether that's through the media, whether that is through the public, it is important for people to almost reason backwards and ask what's an issue I care about, and then try to figure out what role has the Supreme Court had in that area or as to that issue. And I think that would be a very illuminating exercise for people to see just how powerful the Supreme Court is.
Bruce Spiva: We must never give up the fight in the courts with what tools remain to fight for people's freedom to vote.
Simone Leeper: For Bruce and our fellow colleagues at Campaign Legal Center, the work continues in the courtroom, and wherever possible, in passing legislation. As the Supreme Court has curtailed the federal Voting Rights Act, some states have stepped up to strengthen their own voter protections. And as the Supreme Court has held that federal courts cannot hear partisan gerrymandering claims, some states have empowered independent redistricting commissions to draw fair representative voting districts. And at the federal level, lawmakers are pushing for new voting rights protection laws. In 2021, the House of Representatives passed such a bill named for former civil rights leader John Lewis, but the Senate didn't follow suit, at least not yet.
Bruce Spiva: Ultimately, we need new legislation, and we got close to getting it. Congress should pass the John Lewis Voting Rights Advancement Act. We in the civil rights community need to remain vigilant and prepare and try to make that day come sooner. Many people died for this right to vote. And so although these measures that have been passed since Shelby County make it harder, generally they don't make it impossible. Through education and advocacy, people can be helped still to exercise their freedom to vote. And as the old civil rights song goes, they shouldn't let nobody turn them around from the ballot box.
Simone Leeper: Casting a ballot in an election is one of the things we most often think of when we talk about we as Americans can make our voices heard in our democracy, but there are other ways to participate, like contributing to a political campaign. Unfortunately, with that as well, Supreme Court decisions in recent years have altered our system in such a way as to effectively drown out the voice of the average voter.
David Kolker: Many people believe that campaign finance issues, and specifically the problems we have with the way the court has regulated this area of the law, is one of the primary problems in our democracy. It seems as if the power of money is more important to the court than the power of individual people to participate properly in self- government.
Simone Leeper: This is David Kolker, another colleague of mine at Campaign Legal Center. He's a campaign finance lawyer who worked at the Federal Election Commission for almost 20 years before coming to CLC. The commission is the only government agency whose sole responsibility is overseeing the role of money in federal elections. David says the Supreme Court has long resisted efforts to rein in campaign contributions in spending. And the justices seem only to have doubled down on that position over the years.
David Kolker: Really dating back to the 1970s, the Supreme Court has been skeptical about campaign finance laws, but particularly as the makeup of the court changed in the early 2000s, we had a much more skeptical view of these laws.
Simone Leeper: Three cases in particular deserve scrutiny. One, you could probably guess, especially if you've been a Democracy Decoded listener since season one. But we'll start with earlier cases that get less press. Beginning with Buckley v. Valeo from the mid- 1970s. That case began with a law aimed preventing the source of abuses seen during Watergate.
David Kolker: The first modern campaign finance Supreme Court decision that was analyzing the first modern campaign finance law, which was passed in 1974.
Simone Leeper: David Kolker again.
David Kolker: The court's decision in Buckley was in 1976. And it was in that case that the court first ruled that independent spending, if done by individuals, couldn't be limited because of this idea that if it was spent independently of a candidate, it couldn't be at the cause of corruption.
Simone Leeper: The Buckley decision protected campaign spending on the premise that mass communications cost money, thus by a certain logic, legal limits on spending were tantamount to the government preventing free speech. Yet the court also held that it was constitutional to limit donations to candidates in order to safeguard the integrity of elections, and reduce the risk that elected officials would do special favors for their donors. But as long as individuals didn't coordinate with campaigns, the court said they could spend freely. Money, speech, and power stood in a delicate balance, but opportunities for bipartisan reform were still possible. In 2002, Congress passed a landmark law, known popularly as the McCain- Feingold Act, which limited campaign contributions in spending, and which tried to close several big loopholes that had arisen in large part due to the court's earlier decision in Buckley. Multiple interest groups sued immediately trying to loosen these restrictions. The court upheld most of McCain- Feingold, but shortly thereafter, the composition of the court changed, and that brought important consequences. In 2010, David was preparing to defend the Federal Election Commission in front of the DC Circuit Court of Appeals in what became another key case, SpeechNow v. FEC. Though not a case before the Supreme Court, it played an important role in shaping how decisions by the Supreme Court would alter the role of money and politics and our democracy.
David Kolker: SpeechNow v. Federal Election Commission. What this case concerned on its face was how to treat PACs.
Simone Leeper: Political Action Committees, or PACs, are tax- exempt organizations that pool money to spend on candidates, parties, or political causes. They're regulated by the Federal Election Commission.
David Kolker: Normally PACs can only take in $ 5, 000 from any one contributor, and then they can use that money to make contributions or expenditures. And that PAC limit had been upheld. And the SpeechNow case was a carefully designed test case. And they said, we want to take in unlimited contributions, not just $ 5, 000 from each of our contributors. The Buckley decision back in 1976 said, I as an individual, can spend unlimited money on candidate elections trying to influence people as long as I do it independently. All we want to do in SpeechNow is pool the money from a bunch of individuals who can, under Buckley, spend unlimited money on their own. Why can't we chip in more than $ 5, 000 each and take an unlimited contributions, form a PAC? As long as we spend the money independently, we're not going to make any contributions to candidates. So that case was percolating. And it was going to be heard in what we call the en banc DC Circuit, meaning all active judges at the DC Circuit were going to hear this case at once. And I was head of litigation at the FEC at the time of this case. And I was all set to argue before the en banc DC Circuit. And what happened was, literally a week before I got into court to make that argument, the Citizens United decision came down from the Supreme Court
Simone Leeper: Citizens United. That's the third key case that cleared the way for money to flood into America's elections. Gold star if you guessed it correctly.
David Kolker: The actual holding in Citizens United was that corporations could not be limited in spending to influence elections using their corporate profits as long as the spending was independent of candidates and political parties. That was a big if, and it has turned out not to be true for the most part. But that was the premise of the court's decision. That if the corporate spending was independent of candidates, then it did not present a serious risk of corruption.
Simone Leeper: The 5- 4 Citizens United decision in 2010 struck down parts of the McCain- Feingold Act. Corporations could now spend more or less freely to influence voters.
David Kolker: That has had a huge impact on our system. Anybody, be it a corporation, a nonprofit group, just a wealthy person, could use the corporate form to hide their spending. Nonprofits or limited liability corporations could now be used as intermediaries to the eventual spender. And even if the spender has some reporting obligations under the law, if they're just reporting the name of a front group that gave the money to them directly, it's hiding where the money really came from if it was funneled through a front group before it got to the spender. So Citizens United not only unleashed the corporate spending, it allowed anybody with a lot of money who wanted to to hide who they are by using the corporate form before the money actually got spent on elections.
Simone Leeper: When we talk about the harm that Citizens United has done on our system of democracy, we're largely talking about this new feature of elections. It's now much easier for anonymous donors to pour money into campaigns.
David Kolker: In many ways, Citizens United, as awful as it was, was the natural outgrowth of earlier bad decisions that the court had made. And that really stems from the 1976 decision in the Buckley case. What Citizens United did was sort of take that decision and put it on steroids. So the pretense of Buckley, and then carried over to Citizens United, was that if the spending is not coordinated, the Constitution says we can't limit it. And what modern life has shown us, especially in the wake of Citizens United, is that it's very easy to coordinate without officially legally coordinating under the standards that exist. What's frustrating about it is, that in other cases, the court has recognized that coordination can happen with so- called winks and nods, subtle ways without being noticeable or regulable by the Federal Election Commission. So quoting somebody else, I would say that the difference between independent and coordinated spending is a line in the sand drawn on a windy day. And it's just so easy to evade, that it doesn't have much meaning. And yet Citizens United rested on this distinction between independent and coordinated spending.
Simone Leeper: Once the Supreme Court released the Citizens United decision, David was fairly sure that his arguments in the SpeechNow case were in trouble.
David Kolker: We lost the case 9- 0, because after the Supreme Court had ruled that independent spending as a matter of law doesn't corrupt, it was going to be almost impossible for us to defend against people who wanted to pool their money as individuals and spend it independently. Now, what's happened though as a result of Citizen United and SpeechNow together is the creation of a super PAC. And they call them super PACs because instead of being limited to taking in $5, 000 from any single contributor, they can take unlimited money from any contributor. And after Citizens United saying that corporate spending, if done independently, isn't a problem, super PACs can now take in unlimited money from anyone, including corporations. And although the SpeechNow organization that brought that case said they wanted to make independent expenditures supporting a whole bunch of candidates, we've also had the rise of single candidate super PACs. So now we have the specter of somebody like Elon Musk putting $ 250 million into a super PAC, and then it being spent just for Donald Trump. This was not specifically foreseen at the time of Citizens United or SpeechNow, but that is what has happened as a result of those two decisions combined.
Leah Litman: The Supreme Court and lower courts have demolished a lot of modern campaign finance regulation.
Simone Leeper: Once again, Michigan law professor, Leah Litman.
Leah Litman: If there's any question about whether that had an effect on the country and our democracy, the 2024 election, again, is a very pointed example. The richest man in the world pours several hundred million dollars into the election, and thereby purchases himself access to the presidency and the power to advise, exercise power, and influence policy.
Simone Leeper: It's clear that something needs to be done about this. The court may as well have lifted a velvet rope and ushered billionaires into the halls of power. But rather than just hope that these disastrous decisions might somehow be reversed by a new court, there are other things that can be done right now. Congress could step up and pass stronger campaign finance regulations. But in order for those to be effective, we also need to have a strong Federal Election Commission willing and able to enforce the law. These are things that we at Campaign Legal Center have long been calling for, and we'll delve into both these ideas in more detail in our next episode. It's also important to note that in more recent years, the Supreme Court has taken their anti- democratic decisions even further. During the 2024 election season, they ensured that the president would almost surely not be prosecuted for any crimes they commit while in office. The 6- 3 ruling in Trump v. United States, issued while Donald Trump was running for the presidency, gave the US president presumptive immunity from criminal liability for official acts.
Bruce Spiva: The court, in its decision in 2024, gave the president almost complete immunity for any official acts that he or she takes, no matter how corrupt.
Simone Leeper: Bruce Spiva, once again.
Bruce Spiva: And I believe that we are really reaping the whirlwind as a result of that decision. We're seeing the consequences of that now.
Simone Leeper: Then in June of 2025, the Supreme Court issued a decision in Trump v. CASA that drastically expanded presidential power. The case challenged orders issued by three lower courts that blocked the president's efforts to overturn the Constitution's guarantee of birthright citizenship, the idea that everyone born in the United States is a citizen. The Supreme Court's ruling didn't directly address Trump's ability to end birthright citizenship, but what it did do was significantly limit lower courts' ability to issue nationwide injunctions, except in class action cases. This hampers lower court's ability to block unconstitutional actions and invites current and future presidents to act with impunity, knowing that legal challenges could be slow, fragmented, and often too late to matter.
Leah Litman: I do think that the justices have started to become very comfortable and very entitled to wield government power in ways where they just don't care what people think or say about them. The risk of impeachment is so low, the likelihood of political pushback so minimal that they feel like they can do just about anything.
Simone Leeper: So what do we do? Supreme Court justices are appointed for life. Their decisions seem to be chipping away at democracy with each passing year. And as Leah points out, they operate almost completely insulated from public accountability. When reporters revealed that justice Clarence Thomas had enjoyed years of lavish travel on the dime of billionaire Harlan Crow, the court shrugged. And it became all too clear that the Judicial Conference, the small group of federal judges responsible for ethics enforcement for the lower federal courts, was simply unequipped to hold Supreme Court justices accountable. To maintain public trust, it's critical that the Supreme Court be held to similar ethical standards as the other branches of government, and that justices are held accountable when those standards are violated. As I worked on this episode, I thought back to those people on the National Mall who weren't sure how they felt about nine of the most powerful people in the country, the people the Constitution put in charge of protecting our system of government in the world's oldest continuously functioning democracy, which now seems to be showing its age.
Lauren: Do I trust them? Good question.
Simone Leeper: I thought in particular of Lauren from my home state of Florida, in this long pause as she thought about trust.
Lauren: I guess I would say that I trust the American public, where if the Supreme Court were to do something that we as a society did not feel is acceptable, we would exercise our constitutional rights and speak up and help them change that into something that we the people, as stated in the Constitution, are in more supportive.
Simone Leeper: We deserve justices who prioritize the greater public good over their personal interests. If our democracy is to remain strong, we need ethics enforcers that can work independently to hold our highest court to the highest ethical standards. Without this enforcement, public trust in our institutions and our leaders is at risk. And we need a Supreme Court that issues decisions that uphold American democracy not undermine it. But in recent years, the court's decisions on voting rights, partisan gerrymandering, and campaign finance have done and continue to do damage to voters, American democracy, and to the legitimacy of the Supreme Court itself. At this point, it's become clear that Congress must step up. It has the constitutional authority to correct many, though not all, of the court's most egregious anti- democratic rulings. When a person is asked whether they trust the Supreme Court, the answer ought to be a swift and easy yes. But to get to that day, we clearly have work to do, and serious, consistent, and substantial legislative effort to restore American democracy may be the only remedy we have left. In our next episodes, we'll delve deeper into the consequences some of these Supreme Court decisions have wrought and explore ways we can begin to repair the many cracks that have developed across our system of government.
This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. We're a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy. We fight for every American's freedom to vote and participate meaningfully in the Democratic process, particularly Americans who have faced political barriers because of race, ethnicity, or economic status. During this pivotal moment for our country, it is critical that Campaign Legal Center has the support it needs to continue to fight on behalf of the American people. Your tax-deductible donation can directly fund our efforts to do just that. If you would like to support our work, just go to CampaignLegal.org and click on the donate button.
Special thanks to our guests, Leah Litman, Bruce Spiva, and David Kolker. I'm your host, Simone Leeper. Thanks so much for listening. Find us on your podcast platform of choice, and hit subscribe to get updates as we release new episodes. Leading the production for Campaign Legal Center are Casey Atkins, multimedia manager. Mannal Haddad, senior manager for strategic communications and marketing, and Madeleine Greenberg, communications associate. This podcast was produced by Sam Eifling and Ebyan Abdigir, edited and mixed by Patrick Emile. Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at DemocracyGroup.org.