by Jeremy Leaming
The Montana Supreme Court late last year pushed back against the U.S. Supreme Court’s highly unpopular and wobbly reasoned opinion in Citizens United v. FEC, when it upheld the state’s longtime regulation of corporate financing of elections.
Not surprisingly a cabal of corporations quickly asked the high court to overturn the Montana Supreme Court’s ruling in Western Tradition Partnership, Inc. v. State of Montana, which concluded the Roberts Court’s Citizens United opinion was not going to stand in the state’s way of ensuring that corporations do not overtake its elections.
Writing for the majority upholding the Montana Corrupt Practices Act, Chief Justice Mike McGrath stated “when in the 
last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because shadowy backers of WTP [Western Tradition Partnership] seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”
Even the dissenting justice in the Montana case blasted the Supreme Court’s “corporate personhood” reasoning of Citizens United, writing, “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creations of government.”
Then earlier this week came Jeffrey Toobin’s extensive piece for The New Yorker revealing the machinations of the Roberts Court to tear down the tradition of campaign finance regulation, and in the process provide yet another victory for corporate America. As Toobin writes Chief Justice John Roberts craftily took a case with a narrow question before the justices and expanded it allowing the Court’s right-wing bloc to overturn a long tradition of regulating corporate financing of campaigns. The outcome in Citizens United concluded that corporate entities have First Amendment rights to spend whatever they want on electioneering, and in the process ushered in the era of the “super PAC.”
Since that ruling, in which Justice Anthony Kennedy said corporations’ expenditures on electioneering do not “give rise to corruption or the appearance of corruption,” lower federal courts have opened the floodgates to the super Pacs. And yesterday, the The New York Times revealed the consideration of a massive spending plan by TD Ameritrade founder Joe Ricketts to tar President Obama as, among other things, a “meterosexual, black Abe Lincoln.” (Since The Times’ article, the billionaire has sought to distance himself from the plan. Nonetheless, as numerous economists have noted time, and again, the nation’s super wealthy and their apologists are fervently trying to do everything they can to ensure that the only economic policy that succeeds in the nation’s capital centers on tax cuts for the super wealthy. And for more on Ricketts, see Eric Lach’s piece for TPM, noting that the billionaire is “yet another super-rich political donor taking advantage of the post-Citizens United environment to let his money do the talking.”)
The supporters of campaign finance regulation, however, are urging the Supreme Court to let the Montana Supreme Court opinion stand, or revisit and clarify its shoddy work in Citizens United.
Earlier this month, ACSblog noted the amicus brief lodged with the Supreme Court by a coalition of groups, including Free Speech for People, that urges the Court to revisit and reverse its Citizens United opinion.
Today, the Brennan Center for Justice on behalf of nine constitutional law professors lodged an amicus brief arguing that the Supreme Court leave the Montana Supreme Court opinion as is, or if it decides to take the case, it should use the opportunity to “revisit the disastrous ruling” in Citizens United, “which opened the door to unlimited corporate and union spending in American elections.”
In a press statement about its brief, the Brennan Center states, that as of early May “super PACs have raised more than $204 million in this election cycle for both Republicans and Democrats, and have spent more than $98 million – with six months still to go before the general election. In total, outside groups have already spent roughly $121.2 million on federal campaigns, double the amount spent in the same period in 2008.”
The group’s brief continues, “These huge sums deployed to buy candidates’ allegiance are threatening our democracy. There is ample evidence that such nominally independent spending is creating the appearance of corruption – as well as the opportunity for improper dealings after Election Day.”
Regardless of the persuasiveness of the Brennan Center’s brief, the Supreme Court’s right-wing bloc, as activist as it is, is likely not going to question its pro-corporate Citizens United work anytime soon.
[image via Beverly & Pack]
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