SCOTUS Kills Citizens United Challenge
In a one page, per curium decision, the U.S. Supreme Court struck down Montana’s century-old limits on corporate political spending because it conflicts with the court’s earlier decision in Citizens United. From the order:
There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.
Those may come to be two of the most significant sentences issued by the Court this term.
The possible challenge to Citizens United failed to garner much media attention, likely because it was a request to have the court hear a challenge that was done without briefing or argument, and that makes the fact that the court also summarily reversed the Montana Supreme Court here troubling. That’s the point made in the dissent.
Dissenting, Justices Breyer, Ginsburg, Sotomayor and Kagan adopted the dissent of Justice Stevens in the Citizens United case and explained further the problematic divide on the court when it comes to the problem of money in politics. The dissent, in its entirety:
In Citizens United v. Federal Election Commission, the Court concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” I disagree with the Court’s holding for the reasons expressed in Justice Stevens’ dissent in that case. As Justice Stevens explained, “technically independent expenditures can be corrupting in much the same way as direct contributions.” Indeed, Justice Stevens recounted a “substantial body of evidence” suggesting that “[m]any corporate independent expenditures . . . had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements.”
Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Given the history and political landscape in Montana, that court concluded that the State had a compelling interest in limiting independent expenditures by corporations.
Thus, Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.
Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition.
The immediate impact of this decision cannot be overstated. There was at least an arguable case to make that the holding of Citizens United did not extend to the state and local elections. It is nearly impossible to make that argument now. So that means we can expect a flood of corporate dollars into all state and local races and a similar flood of legal challenges to state laws banning or curbing such donations.
Big money in politics is here to stay.
Photo from 401K 2012 via flickr.