Recently, the Montana Supreme Court upheld the state’s ban on corporate independent expenditures. This is a direct rebuke of the U.S. Supreme Court’s decision in Citizens United v. FEC, which struck down a federal ban on corporate independent expenditures, largely based on the assumption that such spending inherently cannot corrupt elected officials.
The majority opinion in Citizens United, authored by Justice Kennedy, concluded that “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption” and that “there is only scant evidence that independent expenditures even ingratiate.” But, thanks to a procedural quirk, the case shot up to the Supreme Court before anyone in the case could engage in any real fact-finding. So, Kennedy’s conclusion was little more than an untested hypothesis, not supported by any hard evidence.
When presented with evidence of corruption in a similar case, Justice Kennedy came to a totally different conclusion. Caperton v. Massey dealt with a West Virginia Supreme Court justice who failed to recuse himself from a case involving a CEO who spent nearly $3 million on independent expenditures in support of the justice’s election. Because the independent expenditures constituted the vast majority of spending in the judicial election, Justice Kennedy concluded that the justice should have recused himself because “no man is allowed to be a judge in his own cause, [and] similar fears of bias can arise when…a man chooses the judge in his own cause.”
Though Kennedy never said that the independent expenditures in Caperton had a potentially corrupting influence, “bias” and “corruption” are cut from the same cloth. Quite simply, a serious fact-based analysis of the role of independent expenditures in the West Virginia Supreme Court election led Kennedy to correctly conclude that large independent expenditures have just as much capacity to influence policymakers as a direct contribution — if not more.
Perhaps taking its cue from Caperton, the Montana Supreme Court engaged in a similarly thorough fact-based analysis of independent expenditures and reached a similar conclusion. Upholding the law, Justice McGrath argued that citizens adopted the law in a populist revolt against the “naked corporate manipulation” of the state — at that time, one mining company controlled “90% of the press in the state and a majority of the legislature.” Justice McGrath concluded that corporate money clearly corrupted Montana’s government before the adoption of the law and would do so again if permitted. McGrath and the other justices on the Montana Supreme Court (even those who dissented) tried to use fact-based analysis in order to expose the lack of factual basis for the Supreme Court’s conclusion in Citizens United that independent expenditures inherently cannot corrupt.
The recently concluded saga of the Republican Iowa caucuses provides more evidence than ever before of how strained the court’s rationale was in Citizens United. Candidate super PACs spent two-thirds of the $12.5 million worth of ads in Iowa under the legal illusion of non-coordination with the candidates. The plurality of those ads — 45 percent of all ads run in Iowa — came at the expense of Newt Gingrich, who once cheered Citizens United as a “great victory for free speech.” Of course, where you stand depends on where you sit — Gingrich now complains of Super PACs, the progeny of Citizens United, “[T]hey have no responsibilities, they have no connection to any pattern of reasonable politics, and it’s a model I hope we can get beyond…”*
Gingrich’s about-face on campaign finance reform is cynical, but it represents a recognition by many that a Supreme Court ruling rooted in ideology rather than reality creates the potential for countless unintended consequences; consequences far more dire for our republic than a stymied Gingrich presidential campaign. The Montana Supreme Court decision — which the plaintiffs will appeal to the Supreme Court — is an opportunity for the Court to face facts and recognize the corrupting influence of corporate independent expenditures, just as it did in Caperton. Will it seize the day and save American elections? Stay tuned.
*This post previously attributed a quote to Newt Gingrich saying that “[c]ampaign finance law has made a mockery of our political campaign season.” The quote should have been attributed to Mitt Romney.