Citizens Reconsidered?

I’ve blogged pretty heavily at the profoundly misguided 2010 U.S. Supreme Court decision in Citizen United vs. Federal Elections Commission, a case that allowed political action committees, corporations and unions to be elevated to the status of an individual with an unbridled right to spend money in support of causes and candidates (the latter are not allowed directly to coordinate) under the free speech provisions of the First Amendment. The Court pretty much tilted the playing field to accord billionaires and big “organizations” an open field to buy the hearts, minds and platforms of the American electorate, significantly denigrating the voice of the vast masses of people without the pocketbook or the inclination to buy votes in the media. The Supreme Court rejected the argument that allowing such spending would encourage corruption or even give the appearance of corruption. I doubt that those who voted five to four to support this decision remotely envisioned the immediate and massive impact that decision would have on campaign spending.

“Corporations and wealthy individuals have contributed millions of dollars to super PACs supporting individual candidates for the Republican presidential nomination. Altogether, super PACs have spent twice as much on television advertising as have the candidates’ campaigns, according to estimates by Kantar Media/CMAG, an ad tracking firm.” Washington Post, February 17^th. But even after that 2010 Supreme Court decision, some states simply don’t believe that their anti-corruption statutes – aimed at limiting expenditures of such mega-organizations in political campaigns at a state level – could possibly limit such local laws. The belief was that the Supreme Court’s statement on the corruption issues was not at the core of the Citizens United ruling (obiter dicta, in legal-speak, meaning essentially non-binding background notes) and could thus be ignored.

Montana, with a population of under 1 million people, is so small and vulnerable to special interests’ having a very low barrier to buy enough media to saturate this under-populated state, that their state supreme court recently ruled, in a five to two vote, that their 1912 state Corrupt Practices Act, which places some limits on corporate campaign spending, was still the law in Montana. In light of Citizens United, on February 17^th, the Supreme Court placed a stay on that Montana decision, pending a further review. Before we jump for joy that the U.S. Supreme Court is likely to reverse Citizens United, we need to be aware that (i) they may hear the case and narrowly differentiate statutes that are corruption-based, (ii) they may peremptorily and without opinion reverse the Montana ruling as contrary to Citizens United, (iii) they may change their minds and not review the case at all, or (iv) simply reverse their decision in Citizens United in light of the massive impact that case has had on campaign expenditures.

Two of the more liberal members of the court (who voted against the majority in Citizens United) – Associate Justices Ruth Bader Ginsburg and Stephen G. Breyer (pictured above) – issued a statement voicing their concerns and indicating why they believed a full review of the case law was in order: “Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’ … A petition for certiorari [court-speak for a request for Supreme Court review] will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

Anything less than a full reversal will have minimal impact on the remaining expenditures between now and the November elections. We know our stalemated Congress won’t pass any legislation that the Supreme Court might invite, and state decisions are unlikely to impact massive national advertising which simply doesn’t fall within state purview even assuming that they would act in time or at all. But this is a chance for our Supreme Court to “man/woman up,” admit they were wrong and reverse the worst Supreme Court decision in recent history.

I’m Peter Dekom, and the real hidden issue in this potential rehearing is whether the Supreme Court has become an instrument of party politics or whether it is what our founding fathers intended – a truly independent tribunal intended to provide a check and a balance to the remaining two branches of government: executive and legislative.