The Supreme Court could give Citizens United a second look this month as it decides whether to take up a lawsuit against the state of Montana, which wants its century-old state law restricting corporate influence in elections to stay in place.
Montana is the only state so far to assert its existing corporate-money ban should still stand after the court ruled in 2010 that corporations could spend unlimited amounts on election ads via independent groups. The Montana Supreme Court upheld the 1912 Corrupt Practices Act, but the Supreme Court ordered that the law not be enforced while it reviewed a challenge by the conservative group American Tradition Partnership. The court is widely expected to strike the law down in keeping with its previous decision.
Still, advocates view the case as their best chance yet to force the justices to re-examine elements of their landmark 2010 opinion that they say have already proven flawed in light of the subsequent deluge of campaign spending. Twenty-two states and Sens. John McCain (R-AZ) and Sheldon Whitehouse (D-RI) have signed on with Montana Attorney General Steve Bullock (D) in support of their claim.
The Supreme Court’s Citizens United decision rested in part on its claim that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Bullock and his supporters are asking them to look at Montana’s own history and then decide whether that assumption is still valid.
The state’s early years were defined by an epic battle between spectacularly wealthy mining barons over the state’s vast resources. Copper billionaire William Clark’s election by the Montana state legislature to the Senate in 1899 was considered so blatant a product of bribery that the Senate refused to seat him, to which he reportedly retorted, “I never bought a man who wasn’t for sale.” Cases like Clark’s were considered a factor in the passage of the 17th Amendment to the U.S. Constitution, which provides for direct election of senators. And widespread allegations that legislators had been wholly purchased by Montana’s “copper kings” prompted voters to go around their lawmakers and pass the Corrupt Practices Act via referendum.
“This was right on the heels of the electrification of the nation [with copper wiring], so these people were becoming fabulously wealthy and had incredible political clout in the legislature,” Brian Shovers, library manager at the Montana Historical Society, told TPM. “There was a very good reason for the people of Montana standing up to the corporations.”
Critics of Citizens United hope that the court will at least give them a chance to make their case that the current campaign finance environment is problematic.
Paul S. Ryan, an attorney at the Campaign Legal Center, which is supporting Montana in the case told TPM the question campaign finance reformers hope to raise is “whether the U.S. Supreme Court simply got it wrong.”
“We have a couple of years experience with the political world post-Citizens United and it looks a lot different then the world we were led to believe it would have looked like by the Supreme Court,” Ryan said.
The two big assumptions Ryan hopes to puncture: that the vast sums now spent by corporations and citizens would be independent, and that they would be sufficiently transparent that voters could evaluate their source. On the first matter, Ryan pointed to the explosion of super PACs dedicated to individual presidential candidates that are run by their close associates, like ex-White House aide Bill Burton’s Priorities USA, or former Romney aide Carl Forti’s Restore Our Future. On the latter, non-profits and trade associations have collected hundreds of millions of dollars in anonymous donations and House and Senate Republicans are blocking efforts to force disclosure.
Ryan has no illusions that the court is going to have a change of heart, but he hoped that they might be at least willing to lend some moral support to open government advocates by expressing their disappointment in the current rules.
“They could stop short of reversing their own decision while nevertheless making clear in an opinion that they expected more independence between new outside money groups and that they expected more effective disclosure,” he said.
Still, some campaign finance experts warn that any trip to the Supreme Court is fraught with danger given their ideological trend in recent years.
“It’s dangerous,” Rick Hasen, a professor of law and political science at the University of California, Irvine, told TPM. “I think this court could actually make things worse if they issue a full opinion.”
Benjy Sarlin is a reporter for Talking Points Memo and co-writes the campaign blog, TPM2012. He previously reported for The Daily Beast/Newsweek as their Washington Correspondent and covered local politics for the New York Sun.