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Miles Mogulescu

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How the Obama Administration Can Help Montana Get the Supreme Court to Consider Reversing Citizens United

Posted: 02/27/2012 12:21 pm

If President Obama is serious in his rhetorical criticism of Citizens United, he may now have his last best chance to get the Supreme Court to modify or reverse Citizens United. He can instruct Attorney General Eric Holder to file a brief supporting the Montana Supreme Court in holding that the documented facts show that unlimited corporate (or individual) contributions to fake "independent" super PACs create political corruption -- and the appearance of political corruption -- justifying their restriction under the Constitution.

Let's assume, for the moment, that most Supreme Court Justices -- particularly Anthony Kennedy -- are not simply results-oriented (i.e. they don't simply manipulate the law to reach the political result they want) but are honest Justices who apply the facts of the case before them to a coherent view of how the Constitution -- particularly the First Amendment -- should be interpreted.

If that's so, then there's at least an outside chance that Montana could force the Supreme Court to revisit -- and perhaps overturn -- key parts of its decision in Citizens United that corporations have the same rights as living persons to donate to political campaigns and that there may be no limits placed on the amount of money that may be donated to so-called "independent" super PACs because, since because such super PACs are allegedly "independent" of the candidate, such contributions cannot create corruption or the appearance of corruption.

The Supreme Court is now considering whether to hear an appeal to the Montana Supreme Court's decision upholding Montana's century-old law banning corporate contributions both directly to campaigns and to "independent" committees in state elections.

President Obama criticized Citizens United in his 2011 State of the Union Address. In deciding to join the Republicans' super PAC juggernaut, the Obama campaign has said it can't unilaterally disarm, but that Obama still wants to abolish unlimited contributions from corporations and individual millionaires and billionaires to super PACs in the near future.

This is a chance for President Obama to put his money where his mouth is. An amicus brief from the United States Justice Department would be a powerful statement to the Supreme Court.

If the Obama administration does not take such concrete steps to back Montana's challenge to Citizens United, then it's hard not to conclude that President Obama's criticism of Citizens United is nothing but empty campaign rhetoric and that he's actually happy for Democrats to join Republicans in the money chase for unlimited campaign contributions from corporations, millionaires and billionaires to fake "independent" committees.

A little background:

The 5-4 majority opinion in Citizens United (written by Justice Kennedy) had two key holdings:

• The first, and better known, holding is that corporations are persons under the First Amendment with the same rights as living, breathing people to make contributions to influence elections. This also means that corporations are subject to the same restrictions as natural persons on the amount of money they may directly give to individual candidates under existing law -- i.e. $2,500 per candidate. It is this holding -- that corporations have the same rights as people -- that has raised the loudest protests to Citizens United.

• The second, and perhaps more important, holding is that there can be no legal limits to contributions, whether by individuals or corporations, to independent committees not "coordinated" with the candidates. Without any serious review of a factual record, Justice Kennedy wrote for the 5-4 majority: "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption...The appearance of influence or access will not cause the electorate to lose faith in our democracy." As law professor Rick Hasen wrote of Kennedy's conclusion, "Facts? We don't need no stinking facts."

It is this second holding in Citizens United which has directly led to the explosion of unlimited super PAC contributions in which both corporations, and individuals like Sheldon Adelson and Foster Freiss, have given millions or tens of millions of dollars to so-called "independent" committees which are often run by former close aides to the candidate, even though they would still be limited to $2500 if they were giving directly to the candidate's campaign.

Cut to nearly two years after Citizens United was handed down: In December, the Montana Supreme Court upheld Montana's 99-year-old Corrupt Practices Act banning corporate contributions in Montana state elections -- whether directly to candidates or though "independent" committees -- against a challenge by several Montana corporations that the Act violates their rights under Citizens United.

In Citizens United the majority held that only corruption, or the appearance of corruption, could provide a sufficiently compelling reason to constitutionally restrict campaign contributions.

Although the Montana law was almost identical to the federal law that the Supreme Court overturned in Citizens United, the Montana Court upheld the state law based on an extensive factual record of the corrupting influence of corporate contributions in Montana politics, both in the early 20th century when the law was passed and since then. Its majority opinion provides over 10 pages of facts to conclude that "examples of well-financed corruption abound. "

According to the Montana Court, in 1912 at the time the Act was passed by a referendum of Montana voters, Montana's government was "operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana political institutions. Bribery of public officials and unlimited campaign spending by the mining interests were commonplace and well known to the public." Moreoever, "Montana was still contending with corporate domination even in the mid-20th century." "The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statue, if it ever did... 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. Clearly Montana has unique and compelling interests to protect through preservation of this statue."

So in this case, the majority opinion of the Montana Supreme Court distinguished itself from the US Supreme Court's majority opinion in Citizens United based on extensive factual record of corruption and appearance of corruption not considered by the US Supreme Court.

The Montana corporate plaintiffs appealed to the US Supreme Court to overturn the Montana Supreme Court on the grounds that the decision of the Montana court conflicted with Citizens United. They asked that the US Supreme Court stay (that is put on hold) the Montana court's decision and either summarily reverse the Montana court without further argument or hearing, or grant certiorari (i.e. allow briefs to be submitted and oral arguments held).

If this were a slam dunk, the US Supreme Court would have granted summary judgment and that would be the end of Montana's 99-year-old campaign law. Instead, the Supreme Court asked the State of Montana and the corporate plaintiffs to each submit briefs on whether the Court should grant certiorari (which requires a vote by 4 of the 9 justices).

Somewhat surprisingly, Justice Ginsburg (joined by Justice Breyer) provided Montana with some remarkable guidance on what to argue in their certiori petition, writing:

"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'... A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."

In other words, Justices Ginsburg and Breyer seemed to be coaching the State of Montana to argue that corporate contributions and/or "independent expenditures" give rise to corruption or the appearance of corruption and thus provide grounds for the Supreme Court to reconsider Citizens United based on a different, and more elaborate, set of facts.

It would be extremely unusual for the Supreme Court to reverse, or significantly modify, a major decision based on a different set of facts so soon after making it, particularly since there has been no change in the composition of the 5-Justice majority in Citizens United. Yet the fact that at least 4 Justices must have voted against summary judgment and for granting Montana an opportunity to argue for certiorari, coupled with the fact the Ginsburg and Breyer provided their somewhat unusual piece of coaching to Montana on how to argue its appeal, suggests there may be a chance the Court could modify Citizens United.

Ginsburg and Breyer have served on the Court for 14 and 13 years respectively and are intimately familiar with its internal politics. It seems unlikely they would favor the Court hearing a similar case to Citizens United so soon after the original decision if they did not believe there was a reasonable chance of convincing at least one member of the 5-4 majority to switch sides -- Ginsburg and Breyer surely understand that a second Supreme Court decision striking down a law limiting campaign contributions so soon would only strengthen the precedential value of Citizens United and make it much harder for a Court with different members to reverse or modify it in the foreseeable future.

So Montana's appeal may be the best chance the nation has of limiting the corrupting influence of money in politics in the foreseeable future, short of amending the Constitution.

In that context, an amicus brief in support of Montana filed by the Solicitor General on behalf of the President of the United States could have considerable impact. According to Court rules, "an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court." An amicus brief on behalf of President Obama could create an additional factual record that helps establish the existence of corruption, and appearance of corruption, unleashed by corporate campaign contributions, and by unlimited contributions by both corporations and individuals so-called "independent" super PACs.

Such a brief could provide factual evidence of the appearance of corruption by polling data on the views of the American public. For example, A recent CNN/Opinion Research Corporation survey found that 86% of the public thinks elected officials in the nation's capital are mostly influenced by the pressure they receive from campaign contributors and that 2/3 say elections are usually for sale to the candidate who can raise the most money, with less than one in three saying that elections are generally won by the best candidate. This and similar evidence establishes the appearance of corruption in the minds of the vast majority of Americans

Moreover, in the wake of Citizens United, the so-called "independence" of super PACs from the candidates' campaigns has turned out to be an elaborate sham. Super PACs are run by former top aides to the candidates. Donors like Sheldon Adelson (Newt Gingrich's sugar daddy) and Foster Friess (Rich Santorum's sugar daddy) max out on contributions to the campaigns and then give millions, or tens of millions more to the super PAC. The candidates are fully aware of their largesse. Does anyone really believe donors giving millions of dollars in unlimited campaign contributions to a candidate's super PAC doesn't expect that the candidate, if elected, will favor policies supported by the donors, or that the candidates don't understand this quid pro quo? This is the very definition of political corruption that the Supreme Court has said can constitutionally justify limitations on campaign contributions.

If President Obama wants to put his money where his mouth is in criticizing the corrupting influence of Citizens United, he can order Attorney General Holder to have the US Solicitor General file an amicus brief before the Supreme Court, supporting the State of Montana and amplifying the factual record on corruption.

If President Obama fails to do so, then it's fair to conclude that his opposition to Citizens United is little more than words and he's satisfied to simply follow the Republicans in chasing unlimited "independent" contributions from corporations, millionaires and billionaires which will surely limit his political options if he's elected to a second term. As the old saying goes, "actions talk, and bullsh*t walks."