Supreme Court Will Reconsider Citizens United — Are They Brave Enough to Recant?

By Staff | April 10, 2012

Justice Ginsburg has already admitted that she was wrong to vote for unlimited corporate spending in federal elections, will the other justices join her and overturn Citizens United?

Just two years after the controversial Citizens United decision legalizing unlimited corporate spending in federal elections, the Supreme Court has agreed to hear a second case about corporate free speech (read: spending!)

This makes for interesting news, both because it is fairly uncommon for the court to consider similar constitutional questions within a few years of each other, and because Montana, the origin of the new case, has a colorful history of electoral corruption.

Discussing the genus of the anti-corruption 17th amendment (which laid out the direct election of senators by the people, and not by state legislators), we noted that it was partly the actions of William A. Clark, 19th Century robber baron (and scoundrel), that brought about this constitutional change. Having established control of much of the world’s copper supply, Clark set about buying a seat in the U.S. Senate. Openly bribing Montana legislators $10,000 per vote, Clark gained his seat.

Wary of the confluence of politics and big money in the modern era, the Montana Supreme Court, in defiance of Citizens United, overturned a lower court ruling and declared that the state’s 1912 Corrupt Practices Act is indeed constitutional. While the U.S. Supreme Court blocked this ruling, it seems that the justices will now take the opportunity to reconsider their previous conclusion.

In upholding a ban on corporate independent expenditures in state elections, the Montana Supreme Court determined that “unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history.”

On the other side, the petition is asking the Supreme Court to consider that “the core holding of Citizens United is that the independence of independent expenditures means that they pose no cognizable quid-pro-quo corruption risk and no other cognizable governmental interest justifies banning corporate independent expenditures. Thus, the Montana Supreme Court’s decision constitutes an attempt to force the reconsideration of Citizens United simply because it disagrees with the opinion.”

Now, as we, and Justice Ginsburg (who incredibly voted with the majority), have already pointed out, Justice Kennedy’s argument on this matter in the original opinion is a weak one:

Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption, [and furthermore] the appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.

This case is, therefore, a wonderful opportunity for the justices to reverse the 2010 decision that has already made its mark on the 2012 election; Super PACs, the funnel for corporate donations, have already raised — with the intention to spend — over $100 million.

Without meaning to sound like a broken record (!) on this issue, Citizens United is widely believed to be a corrupting influence on American democracy, with action groups and calls for a constitutional amendment blossoming since the decision.

During the 2010 State of the Union address, President Obama himself remarked:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.

More recently, the president was joined by Senator John McCain. co-sponsor of legislation that limited how much individuals could contribute to political campaigns, the Senator predicted that major scandals would be the result of the more prominent role of super PACS that Citizen United allowed to foster:

What the Supreme Court did is a combination of arrogance, naivete and stupidity the likes of which I have never seen…I promise you, there will be huge scandals because there’s too much money washing around, too much of it we don’t know who’s behind it and too much corruption associated with that kind of money.

Let’s see if the court is now brave enough to admit that their narrow constitutional ruling, endowing corporations with the rights of persons, was short-sighted. If they can do this, overturning Citizens United, this election will surely go down in the annals of history telling the story of what happened when the political process is opened up to the unlimited financial opinions of corporate peoples.