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Spending Binge by Super PACs Fires Up Opposition to Citizens United

by Alan Markow, published

The Supreme Court’s Citizens United decision, which created an environment of unbridled campaign financing through the funding of Super PACs, is now being challenged on at least four fronts.  In all cases, the challengers believe that the current atmosphere for campaign financing weakens independent voices in the electorate and strengthens a powerful few special interests.

Three of the challenges were precipitated by a Montana Supreme Court finding that the state’s legislative ban on corporate election spending was still constitutional despite Citizens United.  All three challenges come in the forms of Amicus (friend-of-the-court) Briefs.

The case in question is America Traditions vs. Bullock, which challenged the Montana law.  The court held that the case was different from Citizens United in that corruption of the political process through corporate campaign contributions was clear and demonstrable.  One of the Supreme Court’s findings in Citizens United was that such corruption could not be proven.

Perhaps the most cogent of the briefs in support of the Montana Supreme Court was filed by Arizona Republican Senator John McCain and Rhode Island Democratic Senator Sheldon Whitehouse.

“We are deeply concerned about the rise of unlimited, anonymous money now flooding our elections,” Whitehouse and McCain said in a joint statement announcing their friend-of-the-court filing.  “This unregulated and unaccountable spending invites corruption into our political process, and undermines our democracy.  We urge the Supreme Court to make clear that legislatures can take appropriate actions against corrupting influences in campaigns.”

A second Amicus Brief was filed by an alliance of business groups (including Ben and Jerry’s Ice Cream), calling itself Free Speech for People.  It argues that the Supreme Court improperly rejected valid justifications for restrictions on corporate spending on elections.  According to the brief:

“The public record and experience developed in the two years since Citizens United, during which our election process has come to be dominated by super PACs funded by the corporate and wealthy elite, has placed in serious doubt. Continued adherence to them will only serve to undermine First Amendment values and the integrity of our republican democracy itself.”

A third friend-of-the-court filing by “former officers and employees of the Federal Election Commission and state and local agencies responsible for campaign finance laws” urges the court to let stand the Montana decision without a full reconsideration of Citizens United.  This brief notes that “candidates’ increasing reliance on expenditures by outside groups financed by unlimited corporate, union, and individual contributions…creates opportunities for rampant evasion of limits on contributions to candidates— limits that are a principal bulwark against corruption and its appearance.”

Finally, Senator Bernie Sanders (I-VT) has proposed a Constitutional amendment to overturn Citizens United.  According to the Senator’s website, the Saving American Democracy amendment states the following:

  • Corporations are not persons with constitutional rights equal to real people.
  • Corporations are subject to regulation by the people.
  • Corporations may not make campaign contributions or any election expenditures.
  • Congress and states have the power to regulate campaign finances.

It’s hard to say whether there is enough resentment over the new Super PAC campaign spending binge to ignite grassroots support for a Constitutional amendment, or whether one or all of a growing number of friend-of-the-court briefs will persuade the Supreme Court justices to reconsider their Citizens United positions.  But it is clear that there is now a groundswell of active concern with the findings’ impact on the American election process.

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