Court needs chance to overturn Citizens United

June 12, 2012

By Rep. Anna G. Eshoo (D-Palo Alto)

On June 14, the United States Supreme Court will have its first opportunity to revisit the infamous Citizens United decision, handed down in January of 2010. Since that decision and the mayhem it created, experts have pondered whether the court fully understood the ramifications of upending almost 100 years of settled law by deregulating corporate spending rules assembled during that time. Two and a half years and two election cycles later and with the benefit of hindsight, the court can no longer claim ignorance.

Thanks to a defiant Montana Supreme Court and Steve Bullock, the state's determined attorney general, the court has the opportunity to rehear and reconsider Citizens United in the case of American Tradition Partnership v. Bullock. Enacted exactly 100 years ago by ballot initiative, Montana's Corrupt Practices Act prohibits corporations from contributing to — or spending in support of — political candidates. The law rightly prevents the state's wealthy stakeholders, such as mining companies, from exercising undue influence in state elections. It was enacted in direct response to cases of political corruption tied to corporations, and until Citizens United, it protected voters.

Today, the Corrupt Practices Act is under fire by an independent nonprofit group called the American Tradition Partnership, which is seeking to overturn the state law using the cudgel of Citizens United. The American Tradition Partnership is a Washington, D.C.-based 501(c)(4) nonprofit group, meaning its funding sources are completely undisclosed and unlimited. They may include individuals, out-of-state corporations, or, for all we know, even foreign nationals seeking to influence Montana's elections. The group was so certain of victory that they moved to summarily dismantle the law. In a well-drawn and comprehensive 5-2 majority opinion, Montana's Supreme Court disagreed.

At its core, the logic behind Citizens United relies on a finding that direct corporate participation in elections does not subject voters to corruption or the appearance of corruption. If it did, Congress would be justified in imposing rules to prevent it, as it has since Teddy Roosevelt was president. Because the country is large and the system is so complex, proving that one kind of spending leads to corruption is difficult, and free-spending corporations took advantage.

In the much smaller Montana political system, the impact of such spending is indisputable. As the state's justices note in a litany of specific examples, when allowed to do so, entities from Standard Oil to Wall Street investors dominated the state's political scene, and campaign finance laws were and are vital to protect its voters.

The outcome of American Tradition Partnership v. Bullock will have a profound effect on every state with laws designed to prevent corruption and curtail corporate power. It could also present a lifeline for Congress to once again play a role in responding to egregious misbehavior in federal campaigns. Over the last two years, we've all witnessed the emergence of Super PACs, representing a perverse and staggering failure of our laws. There is a glaring need for action in a system riddled with loopholes and abuses. As senators John McCain and Sheldon Whitehouse wrote in a brief to the Supreme Court asking them to side with Montana, "the news confirms, daily, that existing campaign finance rules purporting to provide for 'independence' and 'disclosure' in fact provide neither." These were the safeguards offered by the Citizens United majority to prevent corruption and abuse, and in their absence, we desperately need a legal assessment more in line with the reality voters face every day ... a tsunami of secret money from secret donors flooding our elections.

This month, the Supreme Court will decide whether to summarily dispose of Montana's law using the Citizens United decision, or to schedule oral arguments and finally confront the system it created. The court should hear the arguments. On the eve of the most consequential presidential contest in generations, the justices and all Americans deserve to hear directly from Montana's attorney general why voters, and our elections, deserve a second chance.

Published in the June 12th, 2012 edition of the Menlo Park Almanac.