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Monday, December 5, 2016

Reform advocates who had expressed cautious optimism that the Supreme Court might revisit and even overturn its Citizens United decision in reviewing a Montana Supreme Court case are likely to see their hopes dashed, court watchers and campaign finance law experts said Tuesday.

The century-old Montana law banning corporations from spending on elections is in direct conflict with the 2010 Supreme Court ruling Citizens United v. Federal Election Commission, where a 5-4 majority held that corporations and unions can make unlimited donations to independent expenditure groups as part of their First Amendment free speech rights. Speechnow v. FEC, a D.C. Circuit Court of Appeals opinion issued later that year, expanded the ruling to include individuals donating to independent groups like Super PACs.

The Supreme Court blocked the Montana Supreme Court’s opinion upholding the state law on Friday. But that does not mean it will hear the case, much less embrace campaign finance reform.

“This is all kind of pie in the sky,” said Rick Hasen, an election law expert at the University of California at Irvine. “It’s extremely unliked that Citizens United is overturned. Even if they take the case, and even if they side with Montana, they could do so without formally overturning Citizens United” by citing local factors endemic to the state’s politics.

“The very likely outcome is a 5-4 summary reversal [of the Montana ruling] with a dissent written by Justices Ginsburg, Breyer, Kagan, or Sotomayor.”

The swing vote, as usual, is Justice Anthony Kennedy, the relative moderate appointed by Ronald Reagan in 1988. He authored the original sweeping opinion that paved the way for a new era of unlimited money in politics, and court watchers are skeptical the satire and public scrutiny of Super PAC activity are enough to sway him, even if he is uncomfortable with such a legacy.

“He’s not going to overturn what he said, but he may want to revisit the way he said it so as to try to take some of the heat off him,” said Harvard Law Professor and legal historian Noah Feldman. “Does he like the fact that the world is walking around saying he created Super PACs? No. Kennedy is a politically aware person.”

What’s more, it is unclear whether a reversal of Citizens United in and of itself would be sufficient to prevent billionaires like Sheldon Adelson and Foster Friess, the men who have almost single-handledly propped up the presidential candidacies of Newt Gingrich and Rick Santorum by funding their Super PACs, from operating as they have been. Speechnow is the most immediately relevant case in that regard, and though the opinion relies on the precedent of Citizens, there would probably need to be Federal Election Commission or congressional action to close the Super PAC loophole even if Kennedy does take a step back on permitting unlimited money in politics.

At issue is a clause in the Citizens United opinion where Justice Kennedy asserts as a matter of legal fact that, “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” But this Republican primary fight, with Super PACs dominating the television airwaves, has reeked of corruption.

“The most extreme thing that could happen is Kennedy could back away from that formulation,” said Feldman. “That would not be a full reversal of Citizens United but would open the door for some of the loopholes to be closed.”

The Court and campaign finance will remain on the minds of the public. Recent polling shows Citizens United to be decidedly unpopular and that voters want more transparency — and less outside money — in their elections. It is too soon, however, to draw definitive conclusions on whether the electorate will tolerate Super PAC activity; a key factor may be whether Barack Obama’s Super PAC, Priorities USA, is able to keep up with its Republican counterparts. It raised just over $58,000 in January, whereas Mitt Romney’s Super PAC Restore Our Future took in some $6.6 million.

“The Supreme Court has fundamentally changed the rules of the game here,” said Feldman. “But if it doesn’t particularly look like it affects partisan outcomes, people may not care.”

 

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