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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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Eric Holder

The failure of major federal voting rights legislation in the Senate has left civil rights advocates saying they are determined to keep fighting—including by suing in battleground states. But the little bipartisan consensus that exists on election reform would, at best, lead to much narrower legislation that is unlikely to address state-level GOP efforts now targeting Democratic blocs.

“This is the loss of a battle, but it is not necessarily the loss of a war, and this war will go on,” Eric Holder, the former U.S. attorney general and Democrat, told MSNBC, saying that he and the Democratic Party will be suing in states where state constitutions protect voting rights. “This fight for voting rights and voter protection and for our democracy will continue.”

“The stakes are too important to give up now,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, which for years has operated an Election Day hotline to help people vote. “Our country cannot claim to be free while allowing states to legislate away that freedom at will.”

In recent weeks, as it became clear that the Senate was not going to change its rules to allow the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act to pass with a simple majority, there have been efforts by some lawmakers, election policy experts, and civil rights advocates to identify what election reforms could pass the Senate.

“There are several areas… where I think there could be bipartisan consensus,” said David Becker, executive director of the Center for Election Innovation and Research, in a briefing on January 20. “These areas are all around those guardrails of democracy. They are all about ensuring that however the voters speak that their voice is heard… and cannot be subverted by anyone in the post-election process.”

Becker cited updating the 1887 Electoral Count Act, which addressed the process where state-based slates of presidential electors are accepted by Congress. (In recent weeks, new evidence has surfaced showing that Donald Trump’s supporters tried to present Congress with forged certificates as part of an effort to disrupt ratifying the results on January 6, 2021.) Updating that law could also include clarifying which state officials have final authority in elections and setting out clear timetables for challenging election results in federal court after Election Day.

Five centrist Washington-based think tanks issued a report on January 20, Prioritizing Achievable Federal Election Reform, which suggested federal legislation could codify practices now used by nearly three-quarters of the states. Those include requiring voters to present ID, offering at least a week of early voting, allowing all voters to request a mailed-out ballot, and allowing states to start processing returned absentee ballots a week before Election Day.

But the report, which heavily drew on a task force of 29 state and local election officials from 20 states convened by Washington’s Bipartisan Policy Center, was notable in what it did not include, such as restoring the major enforcement section of the Voting Rights Act of 1965, which was removed by the U.S. Supreme Court in 2013. It did not mention the Electoral Count Act nor growing threats to election officials from Trump supporters.

“This won’t satisfy all supporters of the Freedom to Vote Act, but this is a plausible & serious package of reforms to make elections more accessible and secure that could attract bipartisan support,” tweeted Charles Stewart III, a political scientist and director of the MIT Election Data and Science Lab. “A good starting point.”

The reason the centrist recommendations won’t satisfy civil rights advocates is that many of the most troubling developments since the 2020 election would likely remain.

Targeting Battleground States

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Former president Donald Trump

By Rami Ayyub and Alexandra Ulmer

(Reuters) -The prosecutor for Georgia's biggest county on Thursday requested a special grand jury with subpoena power to aid her investigation into then-President Donald Trump's efforts to influence the U.S. state's 2020 election results.

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