[EL] Justice Kennedy Unlikely To Budge On Citizens United

[Joe La Rue]

Matt wrote, "But this Republican primary fight, with Super PACs dominating
the television airwaves, has reeked of corruption."

I'll agree that it's reeked of negativity. And I get that some of the Super
PACs are controlled by people who are close to the candidates. But neither
of those are "corruption,", which the Supreme Court has defined as a
quid-pro-quo arrangement. So I ask: Of what corruption are you speaking?

Joe
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On Wed, Feb 22, 2012 at 8:56 AM, Matt Taylor <matt at nationalmemo.com> wrote:

> 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'<http://nationalmemo.com/article/justice-kennedy-unlikely-budge-citizens-united>
>
> Wed, 02/22/2012 - 7:43am —
> Matt Taylor <http://nationalmemo.com/users/14>
>
> 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<http://www.nationalmemo.com/article/will-supreme-court-reconsider-citizens-united> 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 <http://gqrr.com/index.php?ID=2693> *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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