On the rare occasions when the world talks to you in stereo, it’s a good idea to set aside your knitting and listen. This week, Americans got their first good look at what super PACs—political organizations that can receive unlimited corporate contributions and make unlimited expenditures for federal candidates—have wrought in Iowa. At the same time, the Montana Supreme Court issued a stunning opinion last Friday, upholding the state’s law limiting corporate election spending. Think of the two as a sort of woofer and tweeter for life in a post-Citizens United world.
The impact of the so-called super PAC on the Iowa election has been profound. Just ask Newt Gingrich, who was clobbered by almost a third of the more than $14 million in super-PAC ad money spent in the weeks before the caucus. When the court handed down that decision in 2010, it assumed both that these expenditures would be independent of the candidate’s official campaigns (they’re not; one is financed by Jon Huntsman’s dad) and that disclosure rules would ensure that Americans knew who was buying and selling their elections (we don’t).
Ruth Marcus has a great piece explaining all the ways in which the super PACs are both coordinating with campaigns and evading federal disclosure requirements. She notes that this was the inevitable consequence of both the Citizens United decision and subsequent lower-court rulings. Whether he meant to or not, she writes, Justice Anthony Kennedy, with his majority opinion in that case, managed to “clear the path for independent expenditure committees backing a particular candidate—and bankrolled by the candidate’s father or run by his former top aides.”
Democracy 21 issued a report today questioning whether these candidate-specific super PACs can possibly meet the legal requirements of “total independence” from the campaigns, as required by the language of Citizens United. That’s the problem when you give corporations the same First Amendment rights as citizens. It’s not just that the resulting citizens are louder and meaner than regular people. They also refuse to tell you who they are and how much a gently worn candidate is selling for these days.
Prof. Richard L. Hasen explained all this back in October, pointing out that the fundamental flaw in Justice Kennedy’s majority opinion in Citizens United lay in his assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That sentence opened the door to super PACS and ignored the reality of everything we all know about the corrupting influence of unlimited money on a political campaign.
Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does. The Montana law was enacted in 1912 and provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” After the Supreme Court handed down theCitizens United decision in 2010, many similar state laws were struck down by the courts or repealed, and a lower court in Montana agreed that the Montana ban was unconstitutional as well, finding that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.”