ATM v. Bullock: A Win for Citizens United

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Based on mere speculation about corporate expenditures, Montana's Supreme Court decision would have denied fundamental rights.

citizensunited_bnr.jpgReuters

Advocates of campaign finance restrictions are not necessarily displeased by the Supreme Court's unsurprising, summary disposal of Montana's ban on independent corporate campaign expenditures. The brief unsigned order in ATM v Bullock, reversing a Montana Supreme Court decision that upheld the ban, will "further fuel" the drive for a constitutional amendment repealing Citizens United, according to freespeechforpeople.org, where hyperbole reigns:

"In the face of overwhelming evidence that the basic premise of the Citizens United ruling was wrong, five justices of the United States Supreme Court today said they do not care. They do not care about the facts."

But, as I've stressed repeatedly, attacks on Citizens United have routinely misrepresented the facts, using that much maligned decision as a catch-all for whatever democrats and progressives don't like about campaign finance. (Monica Youn of the Brennan Center practically acknowledged as much at the recent American Constitution Society convention, as she praised the political uses of the Citizens United meme.)

In fact, Citizens United struck down a ban on independent expenditures by unions and corporations. It did not address expenditures by super-rich individuals, which have dominated in 2012. Instead, it confirmed that "political speech does not lose First Amendment protection simply because its source is a corporation."

That's a principle members of incorporated, progressive advocacy groups should applaud, just as they should vigorously oppose the constitutional amendment promoted by freespeechforpeople.org, which would deny for profit and non-profit corporations fundamental First and Fourth Amendment protections. (I've critiqued the amendment strategy here.)

Montana law had denied corporations their First Amendment rights, and Montana's high court had defied the Citizens United ruling by upholding the law, which is why the Supreme Court slapped it down summarily, without hearing arguments. "The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does," ATM v Bullock rightly declares.

Still, writing for the usual four dissenters, Justice Breyer disagreed: He suggested that Montana had advanced particular, compelling reasons to regulate corporate electoral speech, and Breyer stressed, he remains opposed to the Citizens United ruling and believes it should be reconsidered.

Why? It's worth noting that Breyer doesn't base his objection to Citizen United on a rejection of corporate personhood. He bases it on a rejection of the claim that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." In his view, (shared by many) "Montana's experience, like considerable experience elsewhere since the (Citizens United) decision casts grave doubt" on that "supposition."

But the corrupting effect of independent, corporate expenditures, which (again) have apparently played a small role in 2012, is also a supposition, and suppositions (in other words, speculations) are hardly compelling reasons for denying fundamental rights. That's one more principle progressives should hold dear.

What does this all mean for the future of campaign finance? It's clear that as long as Citizens United stands (and it will likely to stand for a long time) states and localities may not enforce bans on independent corporate expenditures. What options remain for aspiring reformers, apart from a misguided drive for a constitutional amendment?

They can focus on drafting disclosure requirements (allowed by Citizens United) and enforceable rules against coordinating independent groups with candidates; they can try targeting alleged abuse by partisan political groups of IRS rules governing charities. But they'll have no luck in the current Congress and maybe less luck in the Congress of 2013. They could conceivably gain Republican support for legislation eliminating all limits on direct contributions to candidates, a reform that could discourage independent expenditures (if it isn't too late). But progressives who are ideologically committed to imposing new restrictions on campaign spending are not about to support elimination of old ones.

They can also hope that campaign ads will migrate to the Internet, making expensive TV advertising less important, if not anachronistic. I doubt our confused, angry debates about campaign finance will ever be intelligently resolved; perhaps we can hope they'll become irrelevant instead.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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