by Jeremy Leaming
In light of the hundreds of millions that “super PACs” are funneling into the forthcoming general election, as well as the waves of dollars that swamped the 2010 elections, it’s time for the U.S. Supreme Court to rethink its Citizens United v. FEC opinion.
At least that is part of the argument that a coalition, including two national business networks and a Montana corporation, makes in a friend-of-the-court brief recently lodged with the U.S. Supreme Court.
The vehicle for revisiting the controversial 2010 opinion, in which the Court’s right-wing banded together to push aside decades of precedent favoring the regulation of corporate financing of elections is the Montana Supreme Court’s ruling late last year upholding the state’s 1912 Corrupt Practices Act, and in the process providing a striking rebuke to the high court’s holding in Citizens United.
Chief Justice Mike McGarth writing for the majority in Western Tradition Partnership, Inc. v. State of Montana said the high court’s Citizens United opinion did not preclude Montana from enforcing the Corrupt Practices Act. Today, the chief justice said, the state still had serious concerns about “corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs to make Montana especially vulnerable to continued efforts to corporate control to the detriment of democracy and the republican form of government.”
One of the dissenters in the Montana case, Justice James C. Nelson called the concept of corporate personhood, integral to the Citizens United, “offensive.” Nelson continued, “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.”
The 28-page brief shows in striking detail just how off the Supreme Court’s majority was when it declared in Citizens United “that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
The brief’s author, Ben Clements, a board member of Free Speech for People, also a part of the coalition, in a press statement, said, “By granting corporations right to spend unlimited corporate funds on elections, at the expense of the people’s right to prevent the resulting corruption and distortion of our electoral process, the Citizens United ruling undermines First Amendment values and integrity of our republican democracy itself.”
The coalition’s brief cites several reports on the how the unleashing of corporate dollars is already shaping elections. For example, spending from super PACs during the 2010 campaign cycle “was over $300 million, more than quadruple the amount during the 2006 elections.” (TMP reports today that super PACs are already swamping state elections with money, having already spent “more than $12 million in congressional races ….”)
Like the challenge to the campaign finance regulation in Citizens United, the challenge to Montana’s Corrupt Practices Act “presumes that corporations are the constitutional equivalent of human beings for purposes of free speech rights under the First and Fourteenth Amendment,” the brief states. The coalition, however, said there is no evidence that the Constitution’s framers “intended to include corporations in the Bill of Rights.”
For example, the brief notes that James Wilson, signer of the Declaration of Independence and a drafter of the Constitution wrote “corporations needed to ‘be erected with caution, and inspected with care,’ lest they ‘counter-act the design of their original formation.’”
In February, the U.S. Supreme Court blocked the Montana high court ruling on the Corrupt Practices Act, meaning, as Charles S. Johnson wrote for the Missoulian, that for the “first time in a century, corporations can spend unlimited amounts of money in independent expenses on state and local political races in Montana.”
In issuing its stay, two high court justices added that it was time for the Court to revisit Citizens United. Justice Ruth Bader Ginsburg, with Justice Stephen Breyer joining, wrote, “Montana’s experience, and experience elsewhere since the court’s decision in Citizens Untied v. Federal Election Commission …, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”
The Supreme Court, of course, does not have to grant review of the Montana high court decision or revisit Citizens United. But the coalition’s brief is well worth the read for it lays out in compelling and accessible fashion the rapidly growing influence that powerful corporations and the super wealthy are having on elections from coast to coast. See the coalition’s amicus brief here.