Court Gets Second Chance on Citizens United

It’s not likely that anything fundamental will change, but it’s worth noting that the U.S. Supreme Court has just been given a chance to reconsider the empirical (or perhaps it’s better to say “nonempirical”) basis for its fateful decision in Citizens United v. Federal Election Commission. The occasion is a stay granted by the Court in enforcement of a Montana Supreme Court decision involving a state anticorruption statute that is a direct challenge to Citizens United. Here’s what Justice Ginsburg had to say in supporting the stay:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

Ginsburg is alluding to Justice Kennedy’s flat statement in the majority opinion in Citizens United that unlimited corporate or union contributions would not have a corrupting effect.

As the Editors of the New York Times commented today:

The Montana state court ruling rests on a careful review of the political corruption that led the state to pass its Corrupt Practices Act. The Citizens United ruling, by contrast, is based on no evidentiary record at all. The Supreme Court, on its own initiative, took up the broad question of corporate and union spending when the controversy in the case was much narrower. The court’s conservative majority essentially used the Citizens United case to overturn a century of established federal law by imposing its own legal theory, without relying on facts.

If facts actually matter to Justice Kennedy, there’s a clear basis for a second look at what the 5-4 Court majority has done to our system of financing campaigns.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.