Late last year, the Montana Supreme Court refused to follow the Supreme Court’s erroneous Citizens United decision and upheld that state’s longstanding ban on corporate money in politics. Although we criticized that decision shortly thereafter — a lower court must follow the Supreme Court’s decisions even when they are obviously and tragically erroneous — the Montana justices’ overreaching does not excuse the Supreme Court’s far greater sin in handing down Citizens United in the first place. As we said before, “[t]he U.S. Supremes will doubtless decide they need to review the Montana decision. They should do so, and they should reverse their error in Citizens United as soon as possible.”
The day has now come for the Supreme Court to fix its most egregious error since Bush v. Gore:
Challengers to Montana’s ban on corporate independent expenditures — recently upheld by the Montana Supreme Court — have asked Justice Anthony Kennedy to put a hold on the state court’s ruling and have urged the full Court to reverse it. . . .
“The Montana Supreme Court held the Ban constitutional despite the holding in Citizens United v. FEC, 130 S.Ct. 876 (2010), that `[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.’ Immediate relief is needed to prevent irreparable harm to the Corporations’ First Amendment free-speech right. Montana’s primary elections are on June 5, making it vital that planning begin now for independent expenditures before the election.”
Citizens United was wrong the day it was decided, and it has only succeeded in refuting itself during the two years it’s been in effect. One of the core conclusions in Citizens United was the majority’s statement that so-called “independent expenditures” — as opposed to contributions directly to campaigns — “do not give rise to corruption or the appearance of corruption.”
It’s unclear how anyone could have ever believed this was true, but it’s impossible to believe this now. Casino billionaire Sheldon Adelson’s family, for example, gave $11 million to a Super PAC intended to elect Newt Gingrich, and Gingrich met personally with Adelson after this money started flowing. Mitt Rommey has also met with Adelson, and, while it will never be known what the two men said to each other, Romney managed to extract from that meeting an assurance that Adelson “will be behind him 100 percent should he become the nominee.”
Maybe there really were five justices who didn’t understand that this was bound to happen when Citizens United was handed down in 2010, but, in the wake of these backroom meetings between top funders and their candidates, the justices cannot possibly deny the fact that Citizens United leads to corruption or at least the appearance of it. It’s time for the justices to simply admit they were wrong the first time around and overrule Citizens United.