You’ve surely heard by now that the big Supreme Court ruling on the health care bill was not released today. But the court did rule on the Arizona immigration enforcement law, striking down some provisions and upholding others.
But the Supremes made one ruling that isn’t getting much notice in a case that was on my watchlist.
By the usual 5-4 vote, the court reaffirmed its famous “Citizens United” doctrine.
The state of Montana, a state with a particularly nasty history of corporate corruption of politics, had offered the slim majority an opportunity to consider Citizens United after two years of observing its effects. The court took the case, which raised the possibility that developments of the previous and the current election cycles might have induced some member of the slim Citizens United” majority to have a rethink.
The court attaches great weight to precedent, and it would be rare to see the court reverse itself so soon. But they did take the case, and it would take only one justice — presumably the usual swing voter Justice Anthony Kennedy — to note that several of the key premises of the 2010 ruling have not held up.
Kennedy’s fairly complex doctrine in the original case is that the Constitution does allow Congress to regulate campaign finance in order to combat political corruption, but must also respect the ambiguous “personhood” doctrine of corporations, under which corporations have some of the rights of individual humans, and the fact that freedom of expression could be undermined by excessive regulation of the money necessary to exercise free speech.
The key to finessing that problem, Kennedy wrote for the Citizens United majority, was that corporations could give unlimited amounts to organizations involved in political advertising as long as those organizations were “independent” and did not “coordinate” their activities with the candidates’ own campaign committees.
In just two cycles, the special committees formed to exploit this loophole have demonstrated that the enforcement of the key concepts — independence and non-coordination — are much more loophole than law.
In the Montana case that reached the Supreme Court this year, the Montana Supreme Court had suggested that perhaps the new rules applied to federal elections but that states could still make their own rules, especially states with a particularly vivid history of corporations corrupting politics through campaign finances. In urging the U.S. Supreme Court to take the case, Justice Ruth Bader Ginsberg also suggested that the court take into account the first two years of life under the Citizens United doctrine.
“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United 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,’ ” Ginsburg wrote, adding that by taking the case, the U.S. Supreme Court will have “an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Well, it did give them such an opportunity, and today, by the same 5-4 vote that created the Citizens United regime, the five Republican appointees on the Supreme Court ruled that Citizens United should continue to hold sway.