Opinion recap: Citizens United solidified

Analysis

Leaving no doubt that the Supreme Court has no intention of putting new restraints on political campaign spending, despite the huge outflow of cash this year, a five-Justice majority on Monday seized on a new case from Montana to solidify the controversial ruling two years ago in Citizens United v. Federal Election Commission.   Only two potential developments might make a difference in the future: if the Court were persuaded to crack down on secrecy in such spending, or if the Court’s own membership changes.  With complete freedom for donors to spend tens of millions, the disclosure of their identities now looms as the next major issue on campaign finance.

The Court was split 5-4 in striking down — without full briefing or oral argument — a 100-year-old Montana state law that banned corporations in that state from spending any of their corporate cash to support or oppose a candidate or a political party.   While the four Justices in dissent may have had the authority to force a grant of review (normally, four votes to grant is a respected tradition), they did not insist upon that, conceding that there was no chance now that the majority would reconsider the Citizens United precedent even if it did take on the new case for full review.

The brevity of the unsigned (“Per Curiam”) opinion for the majority overruling the Montana Supreme Court suggested that the five Justices who jointed in Citizens United were totally unmoved by a stack of friend-of-court briefs urging the Court to reconsider that decision in the wake of the flood of money going into races this year, especially for the presidency and for seats in Congress.  The whole of the majority’s reasoning was contained in these three sentences:

“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…Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”   Those final words were an indication that this year’s spending patterns, often by supposedly “independent” groups known as “Super PACs,” did not justify reopening the decision that allows unlimited independent spending by corporations and labor unions.   Since that decision, a lower court has interpreted it to mean that unlimited contributions can be made to independent spending groups.

The Supreme Court’s new ruling came down, by coincidence, after a few days in which Washington politicians of both parties engaged in heated public exchanges about whether those who are giving millions to influence this year’s federal elections should have their identities brought out in public.   Republican leaders and campaign strategists who support unlimited spending accused Democratic leaders and strategists of using bullying tactics to try to intimidate GOP donors, while Democrats pursued legal claims at the Federal Election Commission and the Internal Revenue Service to try to force disclosure of who is giving to Super PACs.  One of the targets of the Democratic disclosure effort is a GOP-oriented group, Crossroads GPS, that was founded by former Bush White House political operative Karl Rove.  Rove accused the Obama Administration of “thuggish behavior” toward a group that Rove insisted was set up not mainly for political action but to advance social welfare goals.

At the time the Supreme Court in Citizens United nullified a federal law’s ban on independent spending by corporations and unions, the Court did uphold provisions of federal law requiring disclosure as a general requirement to give voters information about who was trying to influence politics.   Since then, however, disclosure itself has become a deeply divisive issue, adding to the polarization of the two major political parties and their followers as this year’s federal campaign has unfolded.

How soon a new disclosure test case reaches the Supreme Court is uncertain, although a recent decision by the Fourth Circuit Court in Richmond, Va., seems to be a likely prospect.  In that decision (found here), the Circuit Court rejected a challenge to FEC-imposed disclosure obligations by an anti-Obama advocacy group known as “The Real Truth About Abortion,” which previously had been known as “The Real Truth About Obama.”  That is a so-called “527” corporation (under that section of the federal tax code) that sought to undo a federal regulation that might require the group to disclose its campaign finance activities on the premise that it actually is a political action committee.

In the meantime, though, the spending side of campaign finance will remain largely without official limitations, so long as such spending is done by groups that are operating independently of any candidate or any candidate organization.  The Supreme Court in prior rulings has upheld federal campaign laws that forbid such coordinated political finance, but the coordination limits themselves are now under new challenge in a variety of federal court cases.

In Citizens United, the Supreme Court accepted that the politically active group named Citizens United was truly an independent corporation without ties to candidates or a party.  With the development of Super PACs, in the campaign cycle leading up to the 2012 elections, questions have been raised about how independent some of those groups actually are from the candidates they are helping to support.

Plain English summary

Ordinarily, the Supreme Court does not decide a case until after it has accepted it for full-scale review, receives written legal arguments, and then holds a public hearing.  Now and then, and perhaps as many as nine or ten times each Term, the Court disposes of a case without those formalities: it decides the case very soon after getting the case, usually indicating that the outcome was so predictable that there was no need to engage in full-dress proceedings.  That speeded-up procedure is what the Court did on Monday in this case, by a 5-4 vote.  The result was to overturn a Montana Supreme Court decision upholding a 1912 voter-approved ban on corporations’ spending of their own money on political campaigns in that state.  The Court majority found that state court ruling obviously in conflict with a decision the Supreme Court had issued in January 2010 striking down a similar ban in federal law against corporate spending on politics.  The four Justices in dissent conceded that the Supreme Court majority was not ready to take a new look at that 2010 decision, even in a case in which a state’s highest court had found that the state had a history of corrupt corporate influence in its political life.