Citizens United Un-PACed?

                As my colleague pointed out in Attack of the Super PAC, the emergence of super political action committees (Super PACs) in the wake of the Citizens United v FEC Supreme Court decision in 2010 has caused a monumental shift in the financial structure of political campaigns.  To reiterate his excellent summary, the Court found that federal restrictions on the amount that corporations and unions spent for political advertising violated the First Amendment. While the Court did stipulate that such entities could be barred from directly coordinating with a political campaign, in the wake of the decision Super PACs have emerged engaging in aggressive spending in support of their favored candidates.  My colleague makes a plea for limiting the influence of Super PAC funding in the political process, and I certainly share his concern.  What is harder to address is just what kind of limit might be imposed on political spending by Super PACs without running afoul of the Citizens United decision.  It is difficult for Congress to legislate around a First Amendment prohibition and getting a constitutional amendment passed and ratified would be a long-term effort.

                In researching this question, I am led to conclude that the most direct and available means of addressing the situation would be for the Court to revisit its decision.  In fact, there are rumblings that the Court may at least take a step in that direction.  At the end of 2011, Montana’s Supreme Court upheld a state law banning corporate spending on political campaigns on the grounds that the state law was fundamentally different from the limitation found unconstitutional by the U.S. Supreme Court in the Citizens United case.  Immediately following the Montana ruling, the U.S. Supreme Court was asked to stay the Montana decision and did indeed act to stay the decision.  At that time, Justices Ginsberg and Breyer (two of the dissenting justices in the Citizens United decision) made a statement in support of the stay urging the Court to reconsider Citizens United “in light of the huge sums currently deployed to buy candidates’ allegiance.”  While the stay prevents the Montana decision from taking effect, the next step in the process could go a couple of different ways.  According to a February 18, 2012 article on SCOTUSblog, the Court will either: (1) summarily reverse the Montana decision, meaning that the Court will stand firmly behind its Citizens United decision; or (2) decide to fully review the Montana case.  It would take four votes to grant full review.  Assuming that Justices Ginsberg and Breyer have signaled their interest in full review, only two additional justices’ votes would be needed.  However, assuming full review is granted, it will still be a long road ahead.  No decision would occur prior to the upcoming Presidential election, in fact, because of a subsequent application to the court (noted in a March 27^th SCOTUSblog post) a final decision would not occur until after this years’ elections are completed. 

                Furthermore, although a decision on the Montana case might lay some groundwork for an eventual overruling.  As Mr. Goldstein wrote in the February SCOTUSblog post, “…the relationship between campaign finance law and the First Amendment is destined to be unsettled … for at least the next century”.