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News Opinion Editorial

Citizens United II

"While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."

That penultimate sentence in now-retired Justice John Paul Stevens' brilliant dissent in the Citizens United v. Federal Election Commission proved extraordinarily prescient. Whatever fears he and others might have had that theU.S. Supreme Court ruling would open the floodgates of unregulated corporate expenditures on political campaigns were more than justified.

Since that shocking decision two years ago, the public has witnessed the rise of the "Super PAC" and the creation of yet another avenue for the political process to be corrupted by huge sums of money. Rarely has the court diverted so far from settled law — or struck a bigger a blow against good government.

But the court has a chance to ameliorate some of the most disastrous repercussions of its decision — if not reverse course outright — by hearing arguments over a century-old Montana law known as the "Corrupt Practices Act" that restricts corporate giving. That law would seem to run counter to Citizens United, but the state's own Supreme Court voted 5 to 2 to uphold it.

Why? Because, like most Americans, the Montana justices do not believe corporations are the same as people, and they are genuinely worried about how unregulated corporate influence could profoundly alter the political landscape. Even in Montana, a state dominated by conservative Republicans, people are justly concerned that deep-pocketed corporations — mining companies, especially — could run roughshod over the broader public interest. This is not a theoretical question. Montana adopted the law in 1906 in reaction to exactly that kind of behavior — a copper mining company was able to dominate state politics, including buying up judgeships to guarantee favorable court rulings.

TheU.S. Supreme Courthas already blocked the Montana law from being enforced and could strike it down with little more than a stroke of the pen. But should the court choose to hear full arguments, the justices might do something infinitely better — they might revisit Citizens United in such a way that would allow state restrictions on political spending to remain in effect and perhaps even amend their views on the federal regulations of corporate spending as well.

That's what a growing number of elected officials, Democrat and Republican, are asking the court to do. A brief submitted by Sens. John McCain, a Republican, and Sheldon Whitehouse, a Democrat, last week refutes the majority's conclusion that independent expenditures made on behalf of candidates do not give rise to corruption or the appearance of corruption.

They are not alone. Twenty-two states and the District of Columbia are also backing Montana in the dispute. Maryland is one of those states, along with New York, Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, North Carolina, Rhode Island, Utah, Vermont, Washington and West Virginia. That's deep red, deep blue, and everything in between.

We would add our voice to the chorus. In Citizens United, the court strayed too far from legal precedent and failed to grasp that spending by a Super PAC on behalf of candidates amounts to something little different than giving them money directly. It is bribery of convenience — a Super PAC can be run by a candidate's family member or duplicate the candidate's own message, it makes no difference.

Obviously, the Supreme Court is unlikely to reverse Citizens United outright — although that would be the ideal. But it would not be unprecedented for the high court to amend a previous decision to clarify intent and perhaps give the government, at both the state and federal level, some chance to rein in what's going on.

This is really the nation's best hope for reform. Super PAC spending provides significant political advantage to Republicans (at least so far), so the chances of reform in Congress are essentially zero. Even attempts to require disclosure of donors have fallen flat, though the courts have also offered a glimmer of hope on that front; a U.S. Court of Appeals panel in Washington decided last week not to grant a stay against a lower court judge's ruling requiring Super PACs to say where their money comes from.

Ultimately, though, it will be up to the Supreme Court to decide whether federal, state and local elections simply go the highest bidder. Surely, the justices are capable of recognizing their mistake. Protecting the First Amendment rights of Americans is important, of course, but allowing large corporations to spend unlimited amounts to elect candidates is hardly what the framers had in mind.

Copyright © 2015, The Baltimore Sun
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