In summarily dismissing a Montana
case in which the state’s high court had upheld an anti-
corruption statute regulating corporate spending on elections,
the U.S. Supreme Court this week opted to see no evil, hear no
evil and speak no truth.
The Montana case presented the court with an opportunity --
no, an obligation -- to revisit its controversial Citizens
United decision of 2010 and bring that ruling into line with
objective fact. Instead, the Citizens United majority, led by
Justice Anthony Kennedy, slinked away from a confrontation with
reality.
Objections to Citizens United, which freed corporations and
unions to spend unlimited sums on politics, generally focus on
the avalanche of money spent by super-PACs. However, most of
that money has been spent by wealthy individuals, not
corporations. And though the Citizens United ruling certainly
adopted an expansive and ideological view of First Amendment
rights, it was not without a constitutional mooring. The First
Amendment ain’t beanbag.
What undermines the ruling’s legitimacy is its flights of
fancy about the world of political finance. In an assertion of
shocking naivete, Kennedy, writing for the court’s 5-4 majority,
said corporate independent campaign expenditures “do not give
rise to corruption or the appearance of corruption.”
Montana begged to differ. Based on its history, which
included the wholesale purchase of the state’s Legislature and
political class by mine owners more than a century ago, Montana
restricted corporate spending in elections. It did so not
because the state abhors free speech, but because it required a
bulwark against corporate corruption that had subverted the
state’s laws and threatened the well-being of its citizens.
It’s possible to argue that the First Amendment trumps all
other concerns, and that Montana must simply shoulder the threat
of corruption in order to give primacy to free speech. But it is
not possible to credibly argue, as the Citizens United opinion
does, that huge corporate expenditures to aid select political
candidates do not give rise to corruption or its appearance.
In Citizens United, the majority -- which also included
Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas -- compounded this error by patting
itself on the back for at last bringing clarity and coherence to
the nation’s muddled campaign finance regime. “A campaign
finance system that pairs corporate independent expenditures
with effective disclosure has not existed before today,” Justice
Kennedy crowed. This is a pitiful statement. No such system
existed when Kennedy wrote it. And the prospect of ensuring
effective disclosure has only grown more dubious since. Vast
sums are being spent by political organizations that provide no
clue as to where they get their money. Does Kennedy believe
otherwise? Montana dared him to say so.
Although calls for a constitutional amendment to overturn
Citizens United seem far-fetched, Congress has the power to
require disclosure of political spending and should promptly use
it to pass the Disclose Act. Unfortunately, Republican leaders -
- including House Speaker John Boehner and Senate Minority
Leader Mitch McConnell, both of whom vowed support for campaign
finance disclosure in recent years -- are blocking it. Thus
Kennedy has not only been wrong about disclosure in the past and
present, he may continue to be so well into the future.
Such errors are not incidental to Citizens United. They are
central to it. If political money corrupts, then there are
countervailing interests to weigh against the potent claims of
free speech. If powerful interests -- including foreign
interests -- are free not only to influence elections, but also
to do so secretly, then the Shangri-La of free speech conjured
by Citizens United, in which the myriad sources of finance are
fully disclosed, exists purely in the imaginations of five men
in black robes.
It’s understandable that those justices would turn away a
case that forced them to confront error. But in shrinking from
the task, they’ve simply piled cowardice atop confusion.
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