In its second big ruling Monday, the Supreme Court brushed aside without a hearing Montana’s challenge to the notorious Citizens United decision of 2010, which opened the floodgates to unrestrained campaign contributions by corporations and wealthy individuals as long as they didn’t have direct connections to political campaigns.
That, as it turned out, was a loophole big enough to float an aircraft carrier through.
The five conservative Justices dismissed any claims that the 100-year-old Montana statute, approved by voters when copper barons bought and sold politicians for pennies on the dollar, could exist in the world of Citizens United they created:
The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does.
Liberal Justice Steven Breyer wrote a brief, despairing dissent:
Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so …I do not see a significant possibility of reconsideration.
Democratic lawyer Marc Elias squared the circle for The Washington Post:
To the extent that there was any doubt from the original Citizens United decision broadly applies to state and local laws, that doubt is now gone. To whatever extent that door was open a crack, that door is now closed.
So, the conservative majority struck down a 100-year-old state law while blithely ignoring the explosion of money in the 2012 campaigns, which seems to be overwhelmingly helping the Republican Party. Exhibit A: Wisconsin Gov. Scott Walker, who outspent his Democratic opponent seven to one to survive his recall election.
Exhibit B: Sheldon Adelson, multibillionaire casino mogul of Las Vegas Sands, who spent $20 million funding former House Speaker Newt Gingrich’s quixotic presidential quest and vows to spend as much as $100 million helping Mitt Romney and other Republicans in Senate and House campaigns.
The Justices claim to be above the daily fray of politics when it’s convenient, but that didn’t stop hard-right activist Justice Antonin Scalia from ranting and raving about President Obama’s new immigration policies, announced less than two weeks ago.
In an eye-opening article in The New Yorker a few weeks ago, Jeffrey Toobin unpacked the meaning of Citizens United:
The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. [Chief Justice John] Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term…
So McCain-Feingold, and two Supreme Court precedents, had to be mostly overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing.
Justice John Paul Stevens wrote a spirited dissent:
Unlike our colleagues, [the Framers] had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind…
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding…It is a strange time to repudiate that common sense. 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.
Toobin’s conclusion could serve as the coda to Monday’s decision:
The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.
At this point, only changes in the Supreme Court’s make-up or a Constitutional amendment can undo the damage.