In fewer than 200 words on Monday, the U.S. Supreme Court overturned Montana's 100-year-old prohibition on corporate spending in elections, setting the stage for renewed efforts to overturn Citizens United that don't involve the nation's highest court.
Passed in 1912, the state law in question applied to all elections in the state of Montana, whether for local, state, or federal office. It provided that a "corporation may not make...an expenditure in connection with a candidate or a political committee that supports or opposes a candidate of a political party."
That's no longer constitutional following the Supreme Court's interpretation of the Citizens United case in 2010. If the federal government says money equals speech, and speech is to be free, per the First Amendment, then a state can't abridge the freedom of independent organizations to make unlimited expenditures in the name of influencing elections.
To the Supreme Court, the matter was so cut and dry that five of the nine Justices felt they didn't even need to hear arguments.
"This is like a slow-moving train wreck," said Montana Governor Brian Schweitzer, who was a staunch defender of Montana's campaign finance restrictions. "Now they're saying the system they're using in Washington, DC, where there's dirty, secret, corporate, foreign money pouring into our elections, is somehow going to be better than the system we've had and tried in Montana for 100 years.
"What could go wrong, having Hugo Chavez, and Castro, and the kook in Iran, and the little fellow from North Korea now having the opportunity of directly influencing elections in the U.S.?" Governor Schweitzer asked.
Surprise to No One
Governor Schweitzer's indignation is not to be confused with surprise. Across the board, advocates for campaign finance reform, ones who've pushed to overturn Citizens United for the past two years, woke up Monday morning expecting to be disappointed.
"I think this came as a surprise to no one," said Lisa Gilbert, acting director of the Congress Watch Division at Public Citizen, a nonprofit advocacy group in Washington, DC. "It’s right on par with what the court has been doing in all its decisions." In Monday's decision, the Justices were split 5-4 along the same lines that decided Citizens United in 2010.
"Citizens United is the big one, and this could have been, if they'd agreed to hear it, a ray of hope that they'd rethink that 2010 decision," said Mary Boyle, Vice President of Common Cause, another nonprofit advocacy group working to overturn Citizens United. "But apparently not."
"The CLC views this outcome as unfortunate but predictable," said Paul S. Ryan, Senior Counsel for the Campaign Legal Center. "In the short term, this court is a dead end with respect to limits or prohibitions on corporate political expenditures."
What's a campaign finance watchdog to do? The Supreme Court's interpretation of the Constitution is the law of the land, and we've now witnessed the fate of any effort to prohibit independent expenditures at any level of government. Not even in a local race for sheriff can independent expenditures be curbed. "This affects every election from the White house to the court house," Governor Schweitzer lamented.
So What Now?
For Governor Schweizert and Mary Boyle at Common Cause, the next step is a ballot initiative that voters in Montana will decide on this November. The initiative amounts to a non-binding resolution of the voting public to instruct members of Congress to support and vote for a constitutional amendment overturning Citizens United. Supporters of the measure just collected enough signatures to get it on the ballot this fall.
But amending the U.S. Constitution is no small task, as those with sharp memories of their high school civics class recall: two-thirds supermajority votes in each house of Congress to propose (or two-thirds of state legislatures forcing a national convention, but that's never happened); then three-fourths of state legislatures need to approve.
It's a process that can take years, advocates admit. "It's not a short-term process," said Mary Boyle, "but we think there's nothing short of our democracy that’s at stake."
Paul S. Ryan said the Campaign Legal Center would go in a more modest direction, citing the difficulty of amending the Constitution as a reason to pursue other reforms first.
"We don't have the resources to be putting in such a long-shot effort," Ryan said. Instead, the CLC will focus on passing the DISCLOSE Act of 2012, a piece of legislation co-sponsored by Democratic Senators Chuck Schumer, Patrick Leahy, and Sheldon Whitehouse. DISCLOSE would enhance public disclosures and tighten coordination rules, among other reforms aimed at making more information about money in politics public.
Though CLC isn't engaged directly with any effort to amend the Constitution, Ryan allows that the legislation they're supporting could be part of the push. "Without actual data and evidence about political spending and the corruption that may flow from it, we'll have no hope or very little hope anytime in the future for sustaining more substantive restrictions on money in politics," he said.
Lisa Gilbert said that Public Citizen would also work to pass DISCLOSE and advocate for other changes to existing laws. Maintaining systems of public financing in local elections, and lobbying for new disclosure rules from the SEC, are each part of the plan, and "quite attainable in the short term," Gilbert said.
Governor Schweitzer said his state would waste no time taking up the fight they started about this time a century ago.
"We're doing the best we can here in Montana," Schweitzer said. "We're standing up, and we just ask the rest of the country to do the same."