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Justice Kennedy Unlikely To Budge On ‘Citizens United’

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Justice Kennedy Unlikely To Budge On ‘Citizens United’


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.”


Matt Taylor

Matt Taylor is the political correspondent and staff reporter at The National Memo. Previously, he was a staff reporter at The East Hampton Star, where he wrote about politics and the arts. He graduated Phi Beta Kappa from the University of Michigan in 2010 with a B.A. in political science. You can follow him on Twitter @matthewt_ny

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  1. davefleeger@hotmail.com February 22, 2012

    With contraversial rulling on super PAC’s I believe that Justices should be elected rather than being appointed by presidents “Republican or Democrat”. This would keep them from making such awful rulings and they know that it is a bad rulling. Corporations are not people, fact!

  2. davefleeger@hotmail.com February 22, 2012

    With contraversial rulling on super PAC’s I believe that Justices should be elected rather than being appointed by presidents “Republican or Democrat”. This would keep them from making such awful rulings and they know that it is a bad rulling. Corporations are not people, fact!

  3. ArthurL.Iamele February 22, 2012

    Since when have the preferences of the American public ever counted? The Court will do what it wants to do, as does Cmgress.

  4. PatrickHenry February 22, 2012

    This article mentions Billionaires Adelson & Friess for Gingrich & Santorum, but doesn’t mention George Soros & Big Unions donating to Obama. I think Supreme Court Justices should still be picked by a President, but with term limits, not life! I used to believe as Dave above that they should be elected, but with the nation as divided as it is now, political ideology would decide anyway instead of “just making sure Laws are Constitutional!

  5. Common Sense Patriot February 22, 2012

    Hoping that the Supreme Court will reverse itself is highly unlikely. Only a Constitutional Amendment will put a stop to the Citizens United and related rulings that allow money to dominate politics and corrupt the politicians who are elected because of their indebtedness to the Super PACs, especially the multi-millionaire contributors. That and fear that if they offend them by any action while in office, they could lose their support or even make enemies of them and the big money would be used against them in their next campaign bid. Our founders wrote a beautiful document but failed to anticipate the emergence of poltical parties. The Constitution says nothing about political parties or about how campaigns should or should not be financed. It is only the Supreme Court’s intepretation of the “free speech” clause that allowed them to render this and other decisions that have steadily eroded and ended any controls on money dominating politics, especially big money from the super rich. But the founders also knew that the Constitution has to be a living document, able to be updated with the changing times and address problems they knew would come but which they could not specifically foresee. That time has come. We need Constitutional Amendments that not only address the Citizens’s United decision and campaign financing, but the very method by which Supreme Court justices are selected and confirmed in the first place to a lifetime position (which lifetime appointment is good because it protectes them from political retribution). However, they should be elected after being nominated by the President. We also need to get rid of the Electoral College and the variance in “winner take all” rules established by political parties in primaries and general elections. It gives inordinate power to some states and not enough to others. Another amendment needed is term limits for members of Congress (which also should include the expansion of House terms to 4 instead of 2 years so they are not in constant campaign mode and heavily in need of political contributions to get re-elected). Two terms each for Senators and House Representatives is enough just as two terms for the President is enough. The founders did not foresee the emergence of lifetime politicians, who become too entrenched and powerful as well as out of touch with the American people and how ordinary people both live their lives and are affected by the laws they pass. We also need an amendment to strengthen ethics laws both for members of Congress and Congressional staffers and federal government employees/appointees (including the military). The revolving door from public “service” to private enrhichment is well known and in most cases is not even illegal. How can you trust a relatively low paid civil servant or congressional staffer or even elected representatives to pass up the opportunity to get rich by being hired by private companies/organizations/corporations? Even Jack Abramov, the convicted lobbyist, stated that this is t he most powerful tool they have to influence Congress and Congressional staffers, as well as key members of the federal government. It twists and distorts everything. They can’t resist the temptation to insert this or that language in massive bills that most of them don’t even understand fully, especially in the tax code, in return for a job paying many times their government jobs/positions, as well as perks and bonuses that can and do make them rich. Not to mention their family members. Congress is lax in enforcing ethics laws and it often becomes a partisan battle rather than true enforcement. Likewise, an amendment should direct the nomination by the president of U. S. attorneys, who mostly turnover with every presidential election anyway, so it is obviously a political appointment, that frequently is blocked by the opposition party in Congress. The President should nominate and the people in the U. S. Attorney’s district should either confirm them by popular vote or reject them. Now this may sound like a lot of elections and very time consuming and expensive, but the very election process itself needs to be reformed where every voter has a voter registration card that has a unique ID and password, so voting can be online or by telephone. Our election systems are antiquated and subject to too many “mistakes” and manipulation, not to forget inefficiency and errors as has happened in states like Florida in the past two decades. At the same time, if a person wants to vote in person, they should be able to go in person down to the local voter registrar’s office and do so, up to 45 days before an election. We also need a phased in balanced budget amendment and elimination of earmarks. These are the most important ones and would reform our political system to be more responsive to the people and less a farce that places too much power in the hands of the super rich and the political organizers who can put together powerful PACs with almost unlimited money. Our founders never intended that our representative government should become a tool of the rich and powerful that is largely unresponsive to the American people.

  6. whitewater February 22, 2012

    this is a huge mistake. i am saddened by the direction we are going.

  7. Frank3 February 22, 2012

    The pendulum has swung and we are back to the days when money purchased everything. Further, the power of the Church is re-emerging to the extent that the prudence of separation of Church and State is being questioned. I think that millionaires are behind the unification of State and Church so that by tithing ten percent of their income they would have no tax liability.

  8. hermanwyatt February 22, 2012

    I think a “little bit ” of Dave Fleegar and Patrick Henry should prevail in the matter of the Supreme Court (Term Limits & Elected)but their election be done by a lifetime term elected “Justices Commission” which shall determine the rankings of the Federal Judges for all of the Federal Courts.

  9. Charles Higgins February 22, 2012

    Corporate interests seem to always come before the peoples interest.This is a prime example.We are going backwards in safe guarding the election process against corp influence.Corruption is back and here to stay!Citizens United and the repeal of the Glass Steagall act has taken us back to the early 20th century.

  10. Jackie Allen February 22, 2012

    Too many Americans have forgotten our history. I suggest that we revisit the past and the corporate greed, scandalous administrations, monopolies, “trusts”, etc. Recall the years when workers had no rights, working conditions were dangerous and
    children worked long hours at hard labor. Who were the Trust Busters? How did
    giant monolopies form? How did this country produce the revival of religious cranks
    and prohibition? Thanks Mr. Higgins

  11. concernedusa7 February 22, 2012

    The Citizens United Ruling is the MOST ASCININE ruling the lawyers could ever attempt.
    The Political Legal Community is bankrupt, common sense has been abdicated!

  12. Jim Groom February 22, 2012

    Kennedy, like most people, is unlikely to overturn himself. That would amount to admitting a mistake. You don’t find yourself on the court by being a flip-flopper. Even if he understands what a horrible decision Citizens United was there is just no way back. Follow the money and you find, as usual, that the monied special interest are running the show for the club. The court provides the legel cover the club requires and obviously the majority of the American people are not invited to be in the club. Pathetic.

  13. Mr Fitz February 22, 2012

    The ideal of ‘government of the people, by the people, and for the people’ has rapidly been modified by the word ‘corporations’. However, I am optimistic that the Supreme Court will be forced to repeal this atrocious piece of legislature during the next Obama four years.

  14. Sleipnir February 22, 2012

    I agree completely with Common Sense Patriot. But until we get rid of the current supreme court justices nothing will ever change and the idiots in congress will not pass any legislation that will impede their political and future financial returns.

  15. Michael Prosser February 22, 2012

    Feb. 22, 2012 President’s Day
    In the Chinese government’s constitution, it can easily be changed, for example in the case of Zhang Jimin’s “Three Represents” and Hu Jintao’s “Scientific Development” clauses that were added to the constitution to enhance the reputations of these two presidents. Having read the Articles related to freedom of speech, press, assembly, and religion in the Chinese constitution, it appears clear that there are many loopholes that make their statements quite contradictory in practice.
    An advantage of the US Constitution, which no doubt very few adult citizens have read since they became adults, is that if it is a living document, it can be changed as the times demand. This was evident in the founders’ immediate decision to add the first ten Amendments. Subsequently, several Articles or Amendments were changed by new Amendments. It is of course incredible difficult currently to amend the Constitution because of the required votes in both houses of Congress and with the number of states which must accept the Amendment. One of the last serious efforts to amend the Constitution was the Equal Rights Amendment in the early 1980s. Before the time was up for the requisite action, there were not enough states ratifying, and in one or two cases, states that had originally ratified it changed their decisions. Common Sense Patriot above makes good points. Unfortunately, they are probably unrealistic. If President Obama is reelected this year, it is likely that he will make one or two new Supreme Court justice appointments, which may (or may not) change the inclinations of the Court in its decisions. Thus, with Obama condemning the United Citizens decision, and Newt Gingrich railing against the Courts, whoever wins the presidential election will have a major influence for decades to come in Court decisions.
    Without any legal background, I know that some (or all) of the states have the power to hold a constitutional convention to maintain, modify, or change the state constitution. I remember that in the mid to late 1960s New York State had such a consitutional convention and the electorate voted on whether to accept the Convention’s recommendations, or not. Is it possible to hold a new US Constitutional Convention by constituional articles now present? If it is possible, what would be required to hold such a Constitutional Convention, and by what means would it need to be ratified or rejected? If the present Constitution permits such a means of making the present Constitution an even more living instrument, how would that begin, proceed, and conclude? Would it be a good idea (or not)?

  16. jimmyags February 22, 2012

    I agree that the only way to get rid of this disaster is to amend the constitution, that said however, there is no way this will happen in any legislative body. Neither party is going to say no to their sugar daddies. The only hope for real change comes from the people, using ballot initiatives. Part of this problem is the myopia on both sides that is so sadly represented here. People on the left will blame Alderson and Friess while people on the right only see Soros as the problem. Until this country is truly united again this will not change. We have only ourselves to blame for this status quo because we allowed words like compromise,negotiation and bi-partisan to become bad things. Prime example, The left claims Clinton delivered a surplus while the right says Gingrich did it. The bottom line is they did it TOGETHER.

  17. EATHERICH February 22, 2012

    the french figured out a way to ” fix ” their aristicratic problems, why can’t we? turn the red queen loose.

  18. StevenBrungard February 22, 2012

    People can create their own super pacs. The more money people raise, the more money corporations and wealthy individuals have to spend.

    The people do not have to out spend anyone, just put the cost up for opponents. At some point, promise and policy and argument will be heard.

  19. DorisV February 22, 2012

    Really disappointed in Sotomayor, Kagan and Ginsberg. What’s next ladies? Sure hope they don’t reverse Roe v. Wade.

  20. Kingofnotsomuch February 22, 2012

    Everybody vote these people out.It doesn’t take money to vote.Since when does the amount of money spent on candidates make a difference on the outcome of any election?Show the corps. and the rich that their money doesn’t mean a thing.The majority rules,not some special interest group.Our economy is starting to improve under this administration.Why should we change it?The GOP party are evidently for corps. and the rich.

  21. sleeprn01 February 22, 2012

    When the vetting process for Justice Sotomayor was in the senate I heard an interview with Senator Jeff Sessions on NPR. Most of his thoughts, were, I thought just GOP rhetoric. The one item that he repeatedly returned to was what he considered “activist judges”; his term, not mine; judges who use their position on the bench to make policy instead of interpreting the law. A justice that would equate free speech with money and a corporation with people in my mind is an activist judge. It was noted in these very pages about 2 days ago that justices Antonin Scalia and Clarance Thomas attended a GOP political retreat at Rancho Mirage California. This retreat was sponsored by Kock Industries. If the GOP is against “activist judges” and want justices to just interpret the constitution without bias how can Justices Scalia and Thomas attend a retreat, a GOP retreat none the less, sponsored by 2 of the biggest super PAC donors. These 2 judges should be impeached for this very flagrant violation of their oath, this stinks like yesterdays dirty diapers. At the very least, if the court should revisit Citizens United they should be made to recuse themselves from the arguments because they obviously cannot be impartial in their decisions.

  22. SWForever February 22, 2012

    Certainly the wrong-headed Supreme Court decision, “Citizens United”, has thrown an enormous monkey-wrench in democracy’s machinery and disenfranchized the “people’s voice”. However, I believe it is important not to mix up “apples and oranges”. So, that when you need to correct a mistake you don’t throw out the baby with the bathwater! I keep hearing people compare “Soros”, contributions, as the same as the Adelson, Koch or Friess, etc., money! Well, it’s not! And, not because one is a democrat and/or another supports the Tea Party and Republican types. Soros, Rockefeller, Carnegie, Ford, Mellon Family and thousands more individual and corporate foundations operate under very strict IRS rules and regulations, with all kinds of reporting and oversite mechanism’s, with governing and independent operating structures under the corporate and/or individual family governance. All come under, what is called 501(c)(3) or (c)(4) IRS regulations and rules,promulgated to implement congressional legislation. More often than not, these funded programs address “social and economic issues and often national security and international programs”. These not-for-profit organizations, are funded by a corporation and/or individuals who first apply for this status and this income is exempt from taxation. They donot and are not allowed to fund individuals running for office or campaigns. Further if, a foundation fails to either spend the amount of money, hire or not hire a specific number of employees, or stay within its stated “mission” for asking for this exemption, the IRS can readily take away its right to operate. Oh yes, there are all kinds of “foundations”,operating, grantmaking and/or educational and informational. Let me say it again, a not-for-profit foundation does not and cannot donate its money to a campaign or a candidate.

    Before “Citizens United”, “individuals were limited in the amount of money they could contribute to a candidate during the primary and general elections. Individuals, known as big fundraisers, could also raise more money from other individuals and put it together in a “super pac” to support a candidate. However, these also, were closely watched, and often were fined by the FEC, if it felt the amount or manner in which it was contributed went beyond FEC regulations. At no time, were “individual” fundraisers, allowed to be a “corporation or company” collecting money from their employees. “Citizen United” changed all of this in the way corporations and individuals can give to and support a candidate. I donot believe “Citizens United” changed anything for not-for-profit Foundations.

    Don’t get me wrong, I believe the amount of money being spent on political campaigns is ruining democracy, as well as the way we pick candidates. But should Soros, decide to create a “super pac” and fund it all by himself or a handful of others, I think that would be just as bad as what Adelson,et al, is doing. But for the moment, it is wrong to compare Soros’foundation programatic giving to Adelson’s personal donations!

  23. Malpal February 23, 2012

    A couple of weeks ago, I think on a cable channel, a commentator who was described as a Democratic strategist made a modest proposal to bfight the CU decision by forming a superPAC that would consist of ordinary citizens whose goal would be to scare the snot out of politicians with negative advertising until enough of them supported a constitutional amendment to void the CU decision. Similar advertising would be used to battle the state legislators who would be needed to vote on the amendment in order for it to become law. Trouble is, I can’t remember the station where I heard this guy or what his name is. I think his basic idea is valid, only I’m not able to fully describe its various nuances. I wonder if anyone out there may have heard him and maybe know who I’m talking about. It would be nice if his words were somewhere in print so that they could be passed around to see if others might take him up on his proposal.

  24. marythomas February 29, 2012

    I’d like to see COMMON SENSE PATRIOT in public service at the highest level…that’s the best, most comprehensive view of what’s needed to reform our sad democracy, I’ve ever seen.

    On a light note, why is no one able to tell me why, if corporations are indeed people, that we cannot elect General Electric or Monsanto for President, WalMart for Senator from Arkansas, etc.?


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