[EL] Justice Kennedy Unlikely To Budge On Citizens United

[Matt Taylor]

Sending along my take on the Montana Supreme Court case and its review  
by SCOTUS. Bottom line: Super PACs probably aren't going anywhere.

http://nationalmemo.com/article/justice-kennedy-unlikely-budge-citizens-united
Justice Kennedy Unlikely To Budge On 'Citizens United'

Wed, 02/22/2012 - 7:43am —
Matt Taylor
Reform advocates who had expressed cautious optimism that the Supreme  
Court might revisit and even overturn its Citizens United decision in  
reviewing a Montana Supreme Court case are likely to see their hopes  
dashed, court watchers and campaign finance law experts said Tuesday.

The century-old Montana law banning corporations from spending on  
elections is in direct conflict with the 2010 Supreme Court ruling  
Citizens United v. Federal Election Commission, where a 5-4 majority  
held that corporations and unions can make unlimited donations to  
independent expenditure groups as part of their First Amendment free  
speech rights. Speechnow v. FEC, a D.C. Circuit Court of Appeals  
opinion issued later that year, expanded the ruling to include  
individuals donating to independent groups like Super PACs.

The Supreme Court blocked the Montana Supreme Court's opinion  
upholding the state law on Friday. But that does not mean it will hear  
the case, much less embrace campaign finance reform.

"This is all kind of pie in the sky," said Rick Hasen, an election law  
expert at the University of California at Irvine. "It’s extremely  
unliked that Citizens United is overturned. Even if they take the  
case, and even if they side with Montana, they could do so without  
formally overturning Citizens United" by citing local factors endemic  
to the state's politics.

"The very likely outcome is a 5-4 summary reversal [of the Montana  
ruling] with a dissent written by Justices Ginsburg, Breyer, Kagan, or  
Sotomayor."

The swing vote, as usual, is Justice Anthony Kennedy, the relative  
moderate appointed by Ronald Reagan in 1988. He authored the original  
sweeping opinion that paved the way for a new era of unlimited money  
in politics, and court watchers are skeptical the satire and public  
scrutiny of Super PAC activity are enough to sway him, even if he is  
uncomfortable with such a legacy.

"He's not going to overturn what he said, but he may want to revisit  
the way he said it so as to try to take some of the heat off him,"  
said Harvard Law Professor and legal scholar Noah Feldman. "Does he  
like the fact that the world is walking around saying he created Super  
PACs? No. Kennedy is a politically aware person."

What's more, it is unclear whether a reversal of Citizens United in  
and of itself would be sufficient to prevent billionaires like Sheldon  
Adelson and Foster Friess, the men who have almost single-handledly  
propped up the presidential candidacies of Newt Gingrich and Rick  
Santorum by funding their Super PACs, from operating as they have  
been. Speechnow is the most immediately relevant case in that regard,  
and though the opinion relies on the precedent of Citizens, there  
would probably need to be Federal Election Commission or congressional  
action to close the Super PAC loophole even if Kennedy does take a  
step back on permitting unlimited money in politics.

At issue is a clause in the Citizens United opinion where Justice  
Kennedy asserts as a matter of legal fact that, "We now conclude that  
independent expenditures, including those made by corporations, do not  
give rise to corruption or the appearance of corruption." But this  
Republican primary fight, with Super PACs dominating the television  
airwaves, has reeked of corruption.

"The most extreme thing that could happen is Kennedy could back away  
from that formulation," said Feldman. "That would not be a full  
reversal of Citizens United but would open the door for some of the  
loopholes to be closed."

The Court and campaign finance will remain on the minds of the public.  
Recent polling shows Citizens United to be decidedly unpopular and  
that voters want more transparency -- and less outside money -- in  
their elections. It is too soon, however, to draw definitive  
conclusions on whether the electorate will tolerate Super PAC  
activity; a key factor may be whether Barack Obama's Super PAC,  
Priorities USA, is able to keep up with its Republican counterparts.  
It raised just over $58,000 in January, whereas Mitt Romney's Super  
PAC Restore Our Future took in some $6.6 million.

"The Supreme Court has fundamentally changed the rules of the game  
here," said Feldman. "But if it doesn’t particularly look like it  
affects partisan outcomes, people may not care."


Matt Taylor, Political Correspondent
The National Memo
matt at nationalmemo.com
(347) 273-1636 (office)
(646) 783-8585 (mobile)
@matthewt_ny (twitter)




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