In rethinking the Citizens United decision, Justice Ruth Bader Ginsberg has admitted that her vote was a mistake. Like many of us, the long-serving justice who has penned over 200 opinions on issues from abortion rights to copyright law, is increasingly worried about the rise of super PACs and the overwhelming role money is playing in this election season.
The issue has come to a head regarding the action of the Montana Supreme Court to uphold a state ban on corporate campaign spending, in seeming violation of Citizens United. While the Supreme Court issued a stay to the Montana law the right to fix wrong precedents is reserved for the Supreme Court itself, Justice Ginsberg and Justice Breyer penned a joint statement questioning their previous decision:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ A petition [to hear the case] 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.
According to the Supreme Court, the only government interest that can be used to justify a limit on corporate spending against First Amendment rights, is the prevention of corruption, or the appearance of corruption.
This was Justice Kennedy’s argument in the original opinion: “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” And furthermore, “[t]he appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.”
It is a weak one, and in the statement last week, Justices Ginsberg and Breyer are starting to point to its essential fallacy.
And if two Supreme Court justices weren’t influential enough, Ben Cohen and Jerry Greenfield (of Ben and Jerry’s) have also demanded that we “get the dough out” of politics. Citizens United (in it’s current form) can’t have long now. In the mean time, we get to enjoy the who-has-the-richest-donors race for the Republican presidential candidate.
- Occupy the Super PACs (slate.com)
- Citizens United is 2 — But Who Isn’t Buying In? (legallyeasy.rocketlawyer.com)
- The Road to Citizens United (legallyeasy.rocketlawyer.com)