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Supreme Court Fails to Correct or Amend its Citizens United Decision

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The Supreme Court had a chance to right a wrong. Unfortunately, by a five to four vote, it declined. Today the court announced its decision to overturn a Montana law prohibiting corporate contributions in elections. The decision comes as no surprise. The Montana law was in direct conflict with the Court’s decision Citizens United, which gave corporations the right to spend unlimited sums of money on political activities, as long as they don’t contribute to candidates directly.

But the same activist court that enlarged the scope of the issues presented by Citizens United in order to fabricate a reason to overturn a century of law, today took the narrow approach. By summarily reversing the decision of the Supreme Court of Montana, the court ignored an opportunity to reconsider two important issues in Citizens United: First, that independent expenditures do not give rise to corruption or the appearance of corruption, and second, that current disclosure laws would provide “citizens with the information needed” to “see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

In Citizens United, the court found—with no factual evidence to support its decision—that corporate independent expenditures do not corrupt the political process and that they would be adequately disclosed so that voters and shareholders could weigh the electioneering messages being paid for with corporate dollars. Two and a half years later, we have a record that proves the court’s underlying assumptions were wrong.

A number of amicus briefs, including one to which the Sunlight Foundation signed on, argued strongly in favor of using the Montana case (officially known as American Tradition Partnership v. Bullock) to address the dual issues of corruption and disclosure. On the corruption side, it is simply no longer realistic to pretend that so-called independent expenditures can’t corrupt or appear to corrupt politicians or the political process. Too many Super PACs and nonprofit organizations with ties to candidates have popped up to think they all have a Chinese Wall that separates their electioneering activities from the candidates. There are too many links, including a rapidly revolving door between the so-called independent groups and the candidates themselves, to claim the groups are truly independent. Moreover, it strains credulity to think that donors to such groups are keeping their generosity a secret. Large donations to outside groups, which are kept secret from the public, can be presented as a calling card by lobbyists seeking to gain access to a politician. The possibility of negative ads can be wielded as a threat to elected officials who don’t toe the line the corporate donor has drawn, or a reward to a compliant Member of Congress. Under the law, the appearance of corruption is as relevant to regulating money in the political process as actual corruption. Since Citizens United was decided, both thresholds have been satisfied.

The Supreme Court was on similarly flimsy footing when it reasoned in Citizens United that disclosure of corporate dark money would “provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions.” Again, we have more than two years of experience telling us the disclosure laws currently on the books do not work. It is simply too easy for a corporation to use a 501(c) nonprofit as a shell to hide its electioneering activity. A group with a benign sounding name and a PO Box for an address can air unlimited electioneering ads without the public ever knowing if the money behind the ads came from a corporation, a wealthy individual, or even a foreign government.

The Supreme Court could have used the Montana case to clarify that current laws do not provide the “transparency [that] enables the electorate to make informed decisions and give proper weight to different speakers and messages.” It could have revisited independent spending and recognized that that the $120 million in outside money that was spent in the 2010 elections, and the $140 million spent so far on the 2012 elections does in fact undermine our elections by giving rise to corruption or the appearance of corruption. It could have recognized, as Justice Bryer pointed out in a dissent joined by Justices Ginsburg, Sotomayor and Kagan, that “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.” It chose not to. Instead it used its decision in ATP v. Montana to perpetuate a system in which unlimited dark money will continue to shape our political process.