Former Senator Russ Feingold, of McCain-Feingold-demolished-by-Citizens-United fame, wrote an interesting article for the Stamford Law Review, including a brief history of campaign finance reform and the manipulations of the Roberts Court. He finishes with a recap of where things now stand, waiting on the Supreme Court to decide whether or not to hear formal arguments in the Montana case of American Tradition Partnership, Inc. v. Bullock, and lays out a few things that could be done to fix the devastation to our electoral process.
From the article:
It’s also true that Congress can and must do more to reform our elections. Possible legislative steps include passing strong disclosure legislation, fixing our now broken system of presidential public financing, and replacing the dysfunctional Federal Election Commission with a true enforcement agency.
Ultimately, however, it is the Supreme Court that must find its way back to the path we began in 2004, 2006 and 2008, when candidates for office were given an incentive to seek the support of small-dollar contributors, if only from necessity.
The Court has a clear opportunity. A new challenge from Montana, based on that state’s historic anti-corruption laws, could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”*
* – Order Granting Stay in Pending Case, Am. Tradition P’ship v. Bullock, No. 11-1179 (Feb. 17, 2012) (citation omitted).
The one option Senator Feingold omits is a Constitutional amendment to overturn Citizens United. I’m guessing he’s in the “never-gonna-happen” camp but I’m a bit mystified by his faith in the probability that this Court will reverse itself. Justices Ginsburg and Breyer were in the dissenting minority in the Citizens United case and surprise no one with their opinions about the outcome. When it comes to the five men in the majority on that decision, the only things we know to indicate if and how they might reconsider the Citizens United ruling are the words “not true,” muttered under Justice Alito’s breath at the 2010 State of the Union address, and Justice Scalia’s comments to the South Carolina Bar last January: “I don’t care who is doing the speech — the more the merrier. People are not stupid. If they don’t like it, they’ll shut it off.”
Every action taken by the Court regarding American Trading Partnership so far gives every indication that there will be no reversal of any kind. In fact, convincing the Roberts 5 to revisit Citizens United with formal arguments in the Montana case is likely to result in angry Justices who will further expand civil rights for legal fictions and create an even more corrupt and opaque electoral process. Is it possible that Kennedy will swing back that far, that fast? Maybe. Is it probable? Definitely not. Rest no hopes on Montana.
Read the full article here.