The two most controversial campaign financing practices of the post-Citizens United era aren’t actually the Supreme Court’s fault. The court’s conservative majority most certainly expected that its 2010 ruling, which granted First Amendment rights to corporations and equated money to speech, would unleash unprecedented amounts of political spending. But when people rail against Citizens United these days, they’re often complaining about two things in particular: the candidate-specific super PACs that implausibly claim to be independent of the candidates they’re backing, and the political slush funds that can accept unlimited secret donations by claiming to be issue-oriented nonprofits. Neither were inevitable byproducts of Citizens United — or a subsequent lower court ruling. They are things that could be fixed either legislatively, administratively, or both. But without a good shove, Congress, the Federal Election Commission and the Internal Revenue Service all appear unlikely to pursue solutions.
Some reformers are thinking that help could come from an unlikely source: the Court itself. The Court, after all, will have a chance to re-address Citizens United in the coming weeks. Late last year, in a move that lifted the spirits of campaign finance reformers across the nation, the Montana Supreme Court openly rebelled against Citizens United. The court voted to uphold Montana’s century-old ban on corporate campaign spending, citing the state’s extensive history of corporate-driven corruption.
Last month, as expected, the U.S. Supreme Court put the Montana ruling on hold. But in an accompanying statement, two liberal justices made it abundantly clear that they’d welcome the opportunity for a reality check. Justice Ruth Bader Ginsberg, joined by Justice Stephen Breyer, wrote that granting the case a full hearing “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.” By stating that those sums are inarguably corrupting, Ginsberg was being particularly provocative, as that’s really what the whole argument is about.