Montana Supreme Court leading the charge against Citizens United

by Patrick Genova

Last month the Supreme Court issued a stay on Montana’s Supreme Court decision upholding corporate spending limits in state elections. It seems that the Court may be ready to reexamine Citizens United. What they’ll find is what many states have been saying all along: Citizens United is out of sync with the values of many states.

Montana was the first of many states to express disdain for unlimited corporate funding. Early last week 55 towns in Vermont passed resolutions proposing a constitutional amendment that would limit the rights of corporations. The Alabama legislature has also been seeking to stop PAC-to-PAC fund transfers that mask donors. Even some members of the Court seem eager to reexamine the effects of Citizens United. In response to the Montana decision, Justice Ginsburg referred to Justice Kennedy’s language in Citizens United decision saying, “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.’” Meanwhile some panelists at the Federal Election Commission’s hearing last week urged the FEC not to wait for the Supreme Court to reverse Citizens United and to take regulatory action into their own hands.

Has Citizens United really jammed the gears of the electoral process as much as recent developments suggest? Independent expenditures on elections have grown from 37.4 million dollars in the 2006 election cycle to 210.9 million dollars in 2010. 170 million dollars buys a lot of ad space, but does it all just amount to white noise pollution? John Nichols and Robert W. McChesney, in their article for The Nation, point out that the Restore Our Future PAC spent over 4 million on commercials smearing Newt Gingrich in the Iowa primaries. They hypothesize that this got the ball rolling for Gingrich’s lukewarm reception in the following primaries. Still others argue that spending will lead to a better informed public.

Regardless of the real political implications of Citizens United, it undoubtedly doesn’t sit well with much of the American public. Pearl Korn, writing for the Huffinton Post, equated the Citizens United decision to “warfare” that is bringing democracy to its knees. It turns out that corporate personhood and unlimited spending are unpopular with a lot of the public. Why? Well, people aren’t corporations, and most people don’t think their corporate counterparts have the their best interest in mind.

It seems that this will all come to a head soon, but the outcome is more uncertain then the impending battle. For now it looks like the Court is going to take up the Montana case to reassess or reiterate Citizens United. If the Court upholds the decision, the question then becomes whether there is enough support for a constitutional amendment.

Patrick Genova is a first-year law student at William & Mary.

permalink: http://stateofelections.pages.wm.edu/2012/03/21/4267/