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Today the Supreme Court passed on the opportunity to revisit its 2010 Citizens United decision which is wreaking havoc on democracy and it has done so in a way that avoids giving the American public a much deserved explanation.
In Citizens United the Supreme Court opened the floodgates on corporate and secret money in our elections; already in 2012 outside spending is double what it was in the record-breaking 2008 elections and nearly all of that money has come from groups that do not disclose their donors.
In granting corporations the right to spend unlimited money to influence elections the Court gave powerful special interests undue influence in the democratic process, and that deluge of corporate cash threatens to drown out the voices of ordinary citizens.
We believe that in a democracy the size of your wallet should not determine the volume of your voice, Montana Attorney General Steve Bullock gave the Court an opportunity to affirm that vision, but today the Supreme Court, once again, rejected it.
The Court also rejected an opportunity to revisit internal inconsistencies in its Citizens United ruling. The five Justices in the majority in Citizens United should not deny that two premises which formed the foundation for the logic of that decision have been called in question by the realities of the 2012 election: those relating to transparency and corruption.
In Citizens United, Justice Kennedy wrote, “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are 'in the pocket' of so-called moneyed interests.” What Justice Kennedy failed to mention in his eloquent defense of the importance of disclosure to a functioning democracy is that no federal laws exist to require that corporations make this information available to their shareholders or to the general public. The American Tradition Partnership case offered the Court the opportunity to revisit this false premise, but the Court rejected that opportunity without explanation.
Also in Citizens United, the Court drew on the precedent of Buckley v. Valeo, in which the Court deemed that independent expenditures do not hold the potential to create the reality or the appearance of corruption. As Justice Breyer’s dissent in American Tradition Partnership describes, Montana’s history of Copper Kings, “casts grave doubts on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
The advent of candidate-specific super PACs has thrown that assumption further into question as these shadow groups have eclipsed traditional campaigns in spending and continually test the limits of non-coordination rules. Regardless of whether or not super PACs are creating actual quid pro quo corruption, the Court held in Citizens United that there is a compelling state interest in limiting expenditures if they even create the appearance of corruption. An April poll found that nearly 70 percent of Americans believe that super PACs will lead to corruption. American Tradition Partnership offered the Court the opportunity to revisit this undeniably false assumption about independent expenditures, but the Court rejected that opportunity without offering an explanation to the American people.
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