Has Anything Changed Since Citizens United to Revive the Anti-Corruption Rationale?

Yahoo reports that the Supreme Court has blocked a Montana Supreme Court ruling that upheld a state ban on corporate political independent expenditures.  The ruling appears to be in direct conflict with Citizens United, though the Montana Supreme Court did seek to distinguish its ruling on the basis of Montana’s unique experience with corruption.  See Western Tradition Partnership, Inc. v. Attorney General, 363 Mont. 220, [ ] (2011) (“unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history”); id. at  [ ] (“The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did.”).  You can find the full text of the Montana opinion here.

Interestingly, a quote from Justice Ginsburg in the Yahoo article, on behalf of herself and Justice Breyer, raises the question of whether the reality of post-Citizens United corporate spending on elections might change the Court’s conclusion as to the absence of any corruption concern vis-à-vis corporate independent expenditures:

Justice Ruth Bader Ginsburg, a dissenter in Citizens United, issued a brief statement for herself and Justice Stephen Breyer saying that campaign spending since the decision makes "it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption.'"

To see for yourself whether there is any room for revisiting the rejection of the anti-corruption rationale in Citizens United, you might want to go back to that opinion (which you can find here) and (re-)read pages 40-45, which contain the bulk of the majority’s discussion of that point.  In particular, I’d ask you to consider what you think of the “evidence” the majority presents to support its conclusion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”  Specifically, ask yourself whether that evidence is sufficient to take that determination out of the hands of Congress.  Finally, ask yourself what you think of the majority’s further conclusion that: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”  Before answering that question, you might want to read some of the comments that follow the Yahoo article.

Stefan Padfield