Published in The National Law Journal.
Two years ago this month, the U.S. Supreme Court held that corporations have a First Amendment right to spend unlimited funds on campaign advertisements, provided that such spending is not formally "coordinated" with any candidate. Central to this conclusion was the majority's broad finding — unsupported by any evidence — that so-called "independent expenditures" pose no risk of political corruption. At the time, some lawyers and academics voiced their alarm. Now, the disastrous effects of this assumption are public knowledge, and — from Helena, Mont., to New York City — even unusual suspects are starting to rebel.
The logic of FEC v. Citizens United quickly led to the creation of Super PACs, mutant political groups that can collect and spend unlimited amounts on electioneering, limited only by impotent rules that supposedly prevent them from directly strategizing with candidates (thus, maintaining a legal status of independence). Unrestricted spending facilitated widespread abuse of disclosure rules, allowing savvy political actors to legally launder money through impenetrable nonprofits and avoid public scrutiny. As a result, outside groups spent more than $300 million to influence the 2010 election, and the source of roughly half of that money will never be revealed.
Now, at the dawn of the 2012 election cycle, Super PACs are seemingly calling the shots, striving to dictate primary-elections results. When it is all over, more money will certainly be spent this year than ever before. Most will come from a very small number of very big donors who will remain hidden from plain sight, but well known to benefitting candidates. The potential for corruption abounds.
Thus far, this has been a rather sad tale. But the arc of constitutional history is long, and there are important signs of progress on the horizon. The biggest news hails from Montana, where that state's Supreme Court just upheld a state law that, like the law struck down in Citizens United, bans the use of corporate treasury funds for electioneering. In doing so, the Montana Supreme Court agreed that severe restrictions on corporate spending could burden First Amendment rights. But, after extensively reviewing evidence of corruption in past elections and considering current political realities, the Montana court concluded that the state remained "vulnerable to continued efforts of corporate control to the detriment of democracy" and thus had a compelling interest to regulate corporate involvement. This careful analysis exposes as fallacy the notion that uncoordinated spending cannot corrupt.
Another significant, but less discussed, recent development comes from the U.S. Court of Appeals for the 2d Circuit. In a case upholding New York City's pay-to-play restrictions, the renowned Judge Guido Calabresi took time, concurring in the opinion, to disagree with the reasoning of Citizens United. "Left unregulated," he argues," ' the distorting effects of immense aggregations of wealth' will garble the political debate," giving the rich disproportionate influence over the political marketplace.
Together, these cases underscore how wrong Citizens United got it — not only did the Court ignore political reality, it failed to appreciate the entire scope of constitutional considerations implicated by money in politics. It is far from common for respected judges to disagree so pointedly with the Court. Is this the dawn of a revolution?
Any budding revolt is well timed to coincide with growing vocal opposition from citizens united against Citizens United. Multiple resolutions have been introduced in Congress to amend the Constitution to overturn the decision. Across the country, local governments — from Los Angeles to Albany, N.Y., from Duluth, Minn., to South Miami, Fla. — have passed legislation objecting to corporate personhood and unlimited campaign spending. Community groups nationwide have taken similar steps.
On repeated occasions, the Court has corrected its constitutional mistakes after widespread defiance from the public. The Court reversed its initial faulty decisions, for instance, on racial segregation, the New Deal, giving equal weight to each person's vote and same-sex sexual privacy.
Montana's decision will almost certainly be appealed to the Supreme Court soon. Then, the Court will have an opportunity to rethink its assumptions about independent expenditures — at a point earlier than anyone expected. This time, the Court should confront the political reality it willfully ignored at first. If it is willing to do so, the Court could restore much-needed accountability to the political process — reclaiming the voice of everyday citizens and boosting the power of ordinary voters.
History teaches that constitutional understandings eventually evolve to meet public will. If the Court refuses to recalibrate, we can expect citizens and courts to continue to rally against the Supreme Court's distorted democracy. Citizens United will, most likely, someday cease to be the law of the land. The real question isn't when, but how.