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The U.S. Supreme Court should uphold Montana’s 100-year-old ban on corporate election spending, and use the case challenging the state’s law as an opportunity to revisit the disastrous ruling in Citizens United v. FEC, which opened the door to unlimited corporate and union spending in American elections.
That’s the position taken in a friend-of-the-court brief to be filed by the Brennan Center for Justice in the Supreme Court tomorrow in the case American Tradition Partnership, Inc. v. Bullock. The brief will be submitted on behalf of nine constitutional law professors and the Brennan Center, a nonpartisan public policy and law institute focused on the fundamental issues of democracy and justice. The brief argues that Citizens United is not tenable in light of the dominant role now being played in U.S. elections by super PACs and other outside groups.
“In the new, post-Citizens United world of campaign finance, corporations, unions, and individuals can donate unlimited amounts to groups that operate as shadow campaigns for the candidates. This raises serious concerns about corruption and has led to widespread public perceptions of corruption,” said Brennan Center Senior Counsel Adam Skaggs. “Increasing numbers of Americans believe our government is bought and paid for by special interests and that their votes don’t matter.”
“In Citizens United, the Supreme Court, without a factual record, stated that independent expenditures ‘do not give rise to corruption or the appearance of corruption,’” said Columbia Law Professor Richard Briffault. “Some lower courts have read this statement in isolation and have relied on it to allow unlimited donations to super PACs. Since then we have seen super PACs that are nominally independent but in reality closely tied to specific candidates solicit and spend multi-million dollar contributions. If the Supreme Court takes this case, it should clarify that issues of corruption and its appearance are questions of fact, not law, and the rise in super PACs clearly show a need for change.”
Montana banned corporate election spending for more than 100 years as a result of a dramatic history of efforts by big companies to capture the state government. Three corporations asked the Montana Supreme Court to overturn the ban on the grounds that it violates the 2010 U.S. Supreme Court ruling in Citizens United. The Montana Supreme Court refused and upheld the anti-corruption law, leading the corporations to appeal to the U.S. Supreme Court.
In Citizens United, the U.S. Supreme Court said that, based on the facts before the Court, “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The Brennan Center’s brief takes issue with that conclusion, and notes that:
- Lower courts mistakenly expanded Citizens United to strike down limits on contributions to groups that make independent expenditures, leading to super PACs.
- Super PACs have made a mockery of campaign contribution limits designed to combat corruption.
- These groups allow a tiny group of deep-pocketed donors disproportionate influence over candidates, opening the door to corrupt dealings and creating the appearance of corruption, seriously undermining public confidence in democracy.
The brief presents evidence that:
- Candidate-specific super PACs, considered by the Federal Election Commission to not be coordinated with candidates’ campaigns, exist for the sole purpose of aiding a candidate’s campaign and are operated by the candidate’s close friends and most trusted political advisors.
- Candidates and their staff appear at their super PACs’ fundraising events and solicit funds for the supposedly independent groups.
- Candidates and their super PACs share vendors, consultants, messages, ad footage — and even airplanes.
- Candidates and their super PACs coordinate campaign strategies in order to maximize their returns.
The brief notes that, as of May 8, super PACs have raised more than $204 million this election cycle for both Republicans and Democrats, and have spent more than $98.8 million — with six months still to go before the general election. In total, outside groups have already spent roughly $121.2 million on federal campaigns, double the amount spent in the same period in 2008.
- More than 78 percent of the money donated to the super PACs active in the presidential election came from just 90 donors who each gave more than $100,000. More than two-thirds of the money donated to super PACs came from donors who gave $500,000 or more. And more than half of the money collected by super PACs since the beginning of 2011 — almost $110 million — came from donors giving $1 million or more.
- As of March, Rooney Holdings — which has a $53 million federal contract through a subsidiary business — had already donated $1 million to Mitt Romney’s Restore Our Future.
- Newt Gingrich’s dedicated super PAC received almost all of its money from casino owner Sheldon Adelson and his family, who donated more than $20 million. Adelson’s business has been under investigation by multiple federal agencies.
A recent poll found that 69 percent of all Americans believe super PACs should be made illegal. Another survey, conducted on behalf of the Brennan Center, found that 41 percent say their votes do not matter very much because big super PAC donors have so much greater influence.
A number of constitutional law professors signed on to the Brennan Center brief — Richard Briffault (Columbia Law School), Erwin Chemerinsky (University of California-Irvine School of Law), James A. Gardner (SUNY-Buffalo Law School), Frances R. Hill (University of Miami School of Law), Ellen D. Katz (University of Michigan Law School), Lawrence Lessig (Harvard Law School), Jamin B. Raskin (American University, Washington College of Law), Zephyr Teachout (Fordham University School of Law), and Ciara Torres-Spelliscy (Stetson University College of Law).