Montana vs. the Supreme Court

So, I sent this terrific Richard Hasen article about Citizens United out to my class earlier this week, but forgot to mention it here.  Now that Kevin Drum is on the case, I was reminded that I’ve been remiss.  Honestly, I think it does the best job of simply and clearly deconstructing what was so wrong about Citizens United as anything I’ve read.  And it’s not so much the corporatsions are people business, but the fact that Anthony Kennedy simply disposes of some very legitimate concerns about “the appearance of corruption” with the wave of a hand.  To wit:

Justice Ginsburg agreed that staying the Montana ruling was the right course, because lower courts are bound to apply Supreme Court precedent even if it is wrong; it is for the Supreme Court to fix its own wrong precedents. But then she added these words in astatement for herself and Justice Stephen Breyer with respect to the stay: “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.”

In this short statement, Justice Ginsburg quoted from the least defensible part of theCitizens United opinion. As I explained in October, according to the Supreme Court, the only government interests that can justify limits on campaign money against First Amendment challenge are the prevention of corruption or the appearance of corruption.  (This interest is what explains the constitutionality of limits on contributions to candidates.) In Citizens United, Justice Kennedy, writing for the court majority, resolved as matter of fiat what had appeared to be a factual question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” He further declared that “[t]he appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.”

Justice Kennedy presents the issue of corruption and the appearance of corruption as a matter of fact, and the Montana court took Justice Kennedy’s on his words and said, “Ok, let’s take a look at the facts” in Montana. There is a large history of corporate spending corrupting the political process here, so our state’s laws are justified.

With last week’s statement, Justice Ginsburg has signaled that she or one of the other justices opposing the Citizens United case will use the Montana case to expose the fallacy of the Citizens United argument.

The real world has proven Anthony Kennedy decidedly wrong.  The only question is, is he big enough to admit it.  Honestly, that’s not something I really expect from many SC Justices.  Anyway, if you have any interest in campaign finance, the whole thing is really worth a read.

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