The Supreme Court’s Cowardiceby
In summarily dismissing a Montana case in which the state’s high court had upheld an anti-corruption statute regulating corporate spending on elections, the U.S. Supreme Court this week opted to see no evil, hear no evil and speak no truth.
The Montana case presented the court with an opportunity -- no, an obligation -- to revisit its controversial Citizens United decision of 2010 and bring that ruling into line with objective fact. Instead, the Citizens United majority, led by Justice Anthony Kennedy, slinked away from a confrontation with reality.
Objections to Citizens United, which freed corporations and unions to spend unlimited sums on politics, generally focus on the avalanche of money spent by super-PACs. However, most of that money has been spent by wealthy individuals, not corporations. And though the Citizens United ruling certainly adopted an expansive and ideological view of First Amendment rights, it was not without a constitutional mooring. The First Amendment ain’t beanbag.
What undermines the ruling’s legitimacy is its flights of fancy about the world of political finance. In an assertion of shocking naivete, Kennedy, writing for the court’s 5-4 majority, said corporate independent campaign expenditures “do not give rise to corruption or the appearance of corruption.”
Montana begged to differ. Based on its history, which included the wholesale purchase of the state’s Legislature and political class by mine owners more than a century ago, Montana restricted corporate spending in elections. It did so not because the state abhors free speech, but because it required a bulwark against corporate corruption that had subverted the state’s laws and threatened the well-being of its citizens.
It’s possible to argue that the First Amendment trumps all other concerns, and that Montana must simply shoulder the threat of corruption in order to give primacy to free speech. But it is not possible to credibly argue, as the Citizens United opinion does, that huge corporate expenditures to aid select political candidates do not give rise to corruption or its appearance.
In Citizens United, the majority -- which also included Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas -- compounded this error by patting itself on the back for at last bringing clarity and coherence to the nation’s muddled campaign finance regime. “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today,” Justice Kennedy crowed. This is a pitiful statement. No such system existed when Kennedy wrote it. And the prospect of ensuring effective disclosure has only grown more dubious since. Vast sums are being spent by political organizations that provide no clue as to where they get their money. Does Kennedy believe otherwise? Montana dared him to say so.
Although calls for a constitutional amendment to overturn Citizens United seem far-fetched, Congress has the power to require disclosure of political spending and should promptly use it to pass the Disclose Act. Unfortunately, Republican leaders -- including House Speaker John Boehner and Senate Minority Leader Mitch McConnell, both of whom vowed support for campaign finance disclosure in recent years -- are blocking it. Thus Kennedy has not only been wrong about disclosure in the past and present, he may continue to be so well into the future.
Such errors are not incidental to Citizens United. They are central to it. If political money corrupts, then there are countervailing interests to weigh against the potent claims of free speech. If powerful interests -- including foreign interests -- are free not only to influence elections, but also to do so secretly, then the Shangri-La of free speech conjured by Citizens United, in which the myriad sources of finance are fully disclosed, exists purely in the imaginations of five men in black robes.
It’s understandable that those justices would turn away a case that forced them to confront error. But in shrinking from the task, they’ve simply piled cowardice atop confusion.
To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at email@example.com .
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