Justices Question Premise of Citizens United

February 20, 2012

by Nicole Flatow

In a U.S. Supreme Court order issued Friday, two of the justices called for review of the controversial decision in Citizens United v. FEC “in light of the huge sums currently deployed to buy candidates’ allegiance.”

The high court issued a stay to block a Montana Supreme Court ruling that upheld a state campaign finance law. The stay allows previously prohibited corporate election spending to occur while the court considers whether to review the state’s decision.

But as part of the order, Justice Ruth Bader Ginsburg issued a statement, joined by Justice Stephen Breyer, calling for the court to grant certiorari so that the justices may consider whether  Citizens United “should continue to hold sway.”

“Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” they write, quoting from the opinion.

In a column for Slate, U.C. Irvine law professor Richard Hasen points out that Ginsburg’s selection of that particular passage from the decision exposes “the false premise at the heart of the Citizens United case.”

In Citizens United, Justice Kennedy, writing for the court majority, resolved as matter of fiat what had appeared to be a factual question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” He further declared that “[t]he appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.”

Justice Kennedy presents the issue of corruption and the appearance of corruption as a matter of fact, and the Montana court took Justice Kennedy’s on his words and said, “Ok, let’s take a look at the facts” in Montana. There is a large history of corporate spending corrupting the political process here, so our state’s laws are justified.

In the Montana case, the state Supreme Court upheld a century-old ban on corporate spending, holding that the state had a compelling interest to pass the law when it passed, and has not lost that interest since.

“If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not,” the majority wrote. “Issues of corporate influence, sparse population, dependence upon agriculture and  extractive  resource  development,  location  as  a  transportation  corridor,  and  low  campaign  costs  make Montana  especially  vulnerable  to  continued  efforts  of  corporate control to the detriment of democracy and the republican form of government.”

Even the dissent, which determined that the U.S. Supreme Court had tied the court’s hands, strongly rejected the notion in Citizens United of “corporate rights.”

“Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons,” wrote Montana Supreme Court Justice James Nelson in his dissent.

In spite of Ginsburg and Breyer’s strong statement Friday, both Hasen and SCOTUSblog’s Tom Goldstein concede that the court is very unlikely to secure a majority to uphold the Montana Supreme Court’s decision.

“But that does not make the state’s effort wasted and the case an empty exercise,” Goldstein writes. “This is one battle in a far wider war for both sides. Because a constitutional amendment is unlikely to be adopted, the relationship between campaign finance law and the First Amendment is destined to be unsettled (in the sense that a shifting Supreme Court majority could reverse course) for at least the next century. The dissenters likely view the case, at the least, as an opportunity to lay the foundation for what they hope will be the eventual overruling of the current body of campaign finance law at some point years down the road.”

And if nothing else, Ginsburg will have the opportunity to “speak truth to power,” Hasen writes.