Saturday, March 10, 2012
Death by a Thousand Cuts?
Is it possible to blunt the force of the Supreme Court's 2010 Citizen's United decision without a constitutional amendment? And, would it matter for gridlock? In an interesting post, Linda Greenhouse of the New York Times argues that there are some very minor signs indicating the Supreme Court itself might be reconsidering its decision. But the impetus for those signs was a Montana Supreme Court opinion that basically worked its way around Citizen's United. The Montana statute under review was a blanket-like prohibition on corporate expenditures made "in connection with a candidate or a political committee that supports or opposes a candidate or a political party." And yet, the Montana Supreme Court pointed to its history of corruption as a legitimate (and indeed compelling) state interest sufficient to justify the restriction. Incredibly, the Supreme Court did not summarily reverse this decision--though it did stay the judgment pending the filing of a writ of certiorari. Justices Ginsburg and Breyer, dissenters in Citizen's United, hoped that " a petition for certiorari will give the Court
an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United
should continue to hold sway." Maybe the Court is being swayed for Montana's disregard, or by the current GOP race. Either way, unless the Supreme Court grants cert. and issues a fairly strong rebuke, this may not be the last defiant state court decision we see.
A similar path was taken in response to Roe v. Wade. States gradually started testing the limits of both the Court's reasoning and its holding, and even pushing the bounds of what seemed obviously in tension with Roe's central tenets. But this worked out for the states, because the Supreme Court drastically restricted the scope of Roe in Planned Parenthood v. Casey in 1992. A similar trajectory for Citizen's United is certainly not unthinkable. Given the vast amount of spending by Super PACs this election cycle, a significant strengthening of the regulatory regime (by weakening Citizen's United) would likely have a huge impact. But would this matter for gridlock? Is gridlock any worse with the rise of Super PACs--and as a result of them--than before they existed?