a 5-4 vote, the Supreme Court on Monday reaffirmed a landmark 2010 ruling
that allows corporations to make unlimited political expenditures,
reversing a Montana Supreme Court ruling from December without hearing
The summary reversal of American Tradition Partnership v. Bullock, which directly rebutted the Citizens United v. Federal Election Commission decision, indicates the Supreme Court will stand by its view of corporations as people. It also clarified that the 2010 rules apply on the state level.
Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan’s dissenting opinion emphasized that independent expenditures can be corrupting. The dissenters added that they would have heard the court case "were the matter up to" them.
“[E]ven if I were to accept Citizens United, this court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana,” Breyer, who led the opinion, wrote.
The Montana court also disagreed in December that independent expenditures were not corrupting.
“Candidates and the public will become mere bystanders in elections” if these expenditures are allowed, Justice James Nelson wrote on behalf of the court, citing the state’s Corrupt Practices Act of 1912 as reason for overturning.
But the Supreme Court’s finding makes clear that states need to comply with its 2010 ruling over previous state law, Democracy 21 President Fred Wertheimer said.
“[The reversal] makes clear that the Citizens United decision applies to state laws as well as federal laws, but it is not an unexpected development by the campaign finance reform community,” Wertheimer told The Hill.
The 2010 Supreme Court decision to allow corporations to make unlimited political expenditures on the basis of freedom of speech led to the creation of super-PACs, committees that can raise and spend unlimited money for political expenditures as long as they do not donate to or coordinate with campaigns.
The combination of spending by hundreds of super-PACs, parties and other outside spending groups has led to more than $163 million of spending in the 2012 cycle so far, according to Open Secrets.
The alleged misuse of the 501(c)(4) social welfare organization title, among other issues, has led to minimal disclosure, too. There has been at least $12 million in undisclosed spending as of Monday, according to The Sunlight Foundation.
Several lawmakers responded to the court’s decision Monday.
Senate Minority Leader Mitch McConnellMitch McConnellThe Trail 2016: Biting the hand that feeds him McConnell: Trump should release his tax returns Adelson aides in talks to make pro-Trump super PAC MORE (R-Ky.) reiterated his support for Citizens United, adding, “Clearly, the much-predicted corporate tsunami that critics of Citizens United warned about simply did not occur.”
House Minority Leader Nancy Pelosi (D-Calif.) took her disagreement to Twitter, saying her solution to the “terrible decision would be 'Disclose, Amend, Reform, Elect.' ”
Rep. Chris Van Hollen (D-Md.), the House sponsor of Disclose Act 2.0 for more stringent disclosure requirements, called the ruling “the wrong decision for America.”
Sens. Sheldon WhitehouseSheldon WhitehouseThe Hill's 12:30 Report Senate amendments could sink email privacy compromise Honor Frank Lautenberg by protecting our kids MORE (D-R.I.) and Charles SchumerCharles SchumerSchumer touts policy victories over Obama administration Puerto Rico debt relief faces serious challenges in Senate Overnight Healthcare: House, Senate on collision course over Zika funding MORE (D-N.Y.), two of the senators on the Democratic coalition working to pass a bill requiring additional donor disclosure, released statements scolding the court. Schumer scorned the Supreme Court’s “anything-goes interpretation of the First Amendment” of corporations’ right to freedom of speech.
“[The ruling] appears to be yet another demonstration of the politicization of the court by the right-wing justices,” Whitehouse said in a statement.
Outside groups chimed in on the ruling as well. Watchdogs from the Campaign Legal Center to Public Campaign warned of the corruption being allowed through the Supreme Court’s ruling.
“If their original decision could be discounted as astoundingly naïve, this rejection of Montana’s anticorruption laws is a crass attempt to rig the political system to protect the powerful and lock in partisan political gains,” Center for American Progress Action Fund President and former Rep. Tom Perriello (D-Va.) said in a statement.
Center for Competitive Politics founder Brad Smith said the decision “is correct, both empirically and as a matter of law.”
The divide over Citizens United has been largely partisan, with Sen. John McCainJohn McCainGOP senators split over Cruz's aid on campaign trail Why a power grid attack is a nightmare scenario Senate fight brews over Afghan visas MORE (R-Ariz.) crossing lines to author an amicus brief with Whitehouse in May. The brief urged the Supreme Court not to consider the case, but to let the Montana court’s ruling stand.
The U.S. Chamber of Commerce submitted a brief prior to the ruling supporting corporate expenditures.
While the decision solidifies that the ruling applies to states, former Federal Election Commission (FEC) Chairman and Commissioner Dave Mason told The Hill most states already have adapted their rules to comply.
Many have already implemented regulations to conform with Citizens United, said Mason, currently a senior vice president at the data-mining and compliance company Aristotle. The impact has been felt in gubernatorial and, to a lesser extent, state legislator races, he explained.
“Montana was the only state out of 50 that didn’t acknowledge the Citizens United decision,” Mason said. “[This ruling] removes any illusion that the Supreme Court jurisprudence is going to change anytime soon.”
The Supreme Court’s decision to stand by its 2010 ruling limits watchdogs and opposition recourse options. Democrats are sure to push for passage of one of the two Disclose Acts currently introduced.
Both chambers’ versions of the Disclose 2.0 Act are intended to put additional disclosure requirements for contributions in place. Neither version is expected to pass Congress, due to the Republican majority in the House.
The ruling could push the FEC, which has been deadlocked along party lines since the 2010 landmark decision, to put Citizens United into effect through regulations.
In a meeting on the proposed regulations that experts have called a “housekeeping measure,” Commissioner Steven Walther asked panelists if it would be “responsible ... to sit tight and see what [the Supreme Court] might be doing” on the Montana case.
Mason said the FEC should not wait any longer to put Citizens United into regulations, although the rules would likely not be in place for the 2012 elections due to the time necessary to pass them. The FEC declined to comment.
“Frankly, the furor over the Montana case was way overblown because there was nothing to suggest that the justices were changing their minds,” Mason said. “This was a great sandcastle that was built by the campaign finance reform community and was completely washed away.”