by Jeff Brindle / May 31 2012
A full court press is on to overturn Citizens United. But opponents of the landmark ruling are likely to be disappointed by the outcome.
Citizens United v. FEC was decided by the U.S. Supreme Court in January, 2010. The controversial decision lifted the ban on independent spending by corporations and unions and found the electioneering communication blackout period to be unconstitutional. However, the Court left in place the ban on direct monetary contributions to candidates and parties and strongly endorsed disclosure.
In American Tradition Partnership, Inc., (ATP) and Western Tradition Partnership, Inc. v. Steve Bullock, Attorney General of Montana, the Petitioners seek to overturn the Montana Corrupt Practices Act, which dates to 1912.
After being clarified by the Legislature in 1979, the law requires that corporations “make campaign contributions and expenditures by accounting for and disclosing them through a separate, segregated fund of voluntarily solicited contributions from shareholders, employees, and members.”
In other words, if corporations want to participate in Montana elections, they have to do so through political action committees that disclose their fundraising activities.
The challenge to the law was first taken up by the Montana District Court which found the law to be unconstitutional. Subsequently, the Montana Supreme Court reversed the District Court’s ruling and upheld the Corrupt Practices Act. American Tradition Partnership, et seq. is now petitioning the U.S. Supreme Court to hear the case on appeal.
Recently, it was announced that the Campaign Legal Center and several other groups, including representatives of 22 states and the District of Columbia, have filed Amici Briefs supporting Montana’s law. The briefs ask the Court to either deny the appeal or reconsider its decision in Citizens United.
Arizona Senator John McCain, a long-time champion of more disclosure by independent campaign committees since one once hurt his presidential primary ambitions, is also filing an Amicus Brief supporting Montana’s law.
While the intent of these groups may well be good, it is doubtful the High Court will take either course of action. If the Court refuses to review the Montana case by denying certiorari, it will be undermining its own precedent in Citizens United and add confusion at a time when campaign finance law already is topsy-turvy. It is even more unlikely that the Court will opt to reconsider and reverse its two-year-old decision in Citizens United.
Attention is being focused on Justice Kennedy as the swing vote. But this may be a fool’s errand. Justice Kennedy has long been a foe of restrictions on campaign spending by corporations, having written the dissent in Austin v. Chamber of Commerce in 1990. That high court ruling refused to let the Michigan Chamber pay for a political ad directly from its corporate treasury and instead required the use of its PAC funds. Kennedy’s early dissent became law when he wrote the majority opinion in Citizens United, which discarded the precedent set in Austin.
In his brief in opposition to the challenge to the Montana statute, Attorney General and candidate for Governor Steve Bullock suggests that the separate, segregated fund—a PAC—is indistinguishable from the corporation. Secondly, he argues that independent spending can corrupt through the influence that money can bring to bear on the outcome of an election.
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