Those expenditures even now are funding an endless stream of attack ads on the air waves and elsewhere, and the huge Republican advantage in raising those funds from corporations, secret non-profits and individuals could hand Mitt Romney the presidential election.
Behind those closed doors, the nine justices could decide to hear argument and review the Montana Supreme Court decision upholding that state's ban on corporate political contributions -- despite the instructions in Citizens United.
They could let the state court ruling stand -- highly unlikely. They could put the decision off to a later conference. Or they could "summarily reverse" the state court ruling, undoing the Montana Supreme Court decision without hearing argument.
Few specifics are known about how the justices operate inside their locked conference room, except that the most junior court member, Justice Elena Kagan, by tradition has to answer the door if someone knocks. It takes only four votes to grant review in a case. But a summary reversal of the Montana court ruling needs to be approved by at least five justices -- the same number who decided Citizens United -- and is not out of the question.
When the U.S. Supreme Court stayed, or temporarily blocked, the state court decision in February, Justices Ruth Bader Ginsburg and Stephen Breyer suggested the high court should take the opportunity to take another look at Citizens United.
Meanwhile, the challengers to the Montana law, a small group of non-profits and corporations, have told the U.S. Supreme Court in their petition that the riot of independent spending following Citizens United is irrelevant.
"Experience" has not "pointed up any shortcomings with Citizens United," the petition said. "Justice Ginsburg, joined by Justice Breyer, however, suggests there is: [They said] Montana's experience, and experience elsewhere since this [U.S. Supreme] Court's decision in Citizens United ... make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption.' ... [The Montana case] will give the [Supreme] 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."
But those huge sums "cannot provide a justification to overturn Citizens United," the challengers said in their petition. "This [U.S. Supreme] Court rejected first in Buckley [vs. Valeo, 1976] the notion that political spending, even if 'huge,' is inherently corrupting. ... And certainly this [U.S. Supreme] Court in Citizens United expected more political spending because it overturned a ban on political spending by thousands upon thousands of corporations and labor unions in federal elections. In addition, most of the 'huge sums' being spent by super PACs are not from corporations but from individuals, so it cannot be tied to Citizens United."
The petition cites news reports that say only a tiny percentage of donations going to the major super PACs come from corporations.
The Montana challengers insist that neither the size of the independent political contributions nor coordination with a candidate's campaign is a problem.
The petition contends that the "'huge sums' being spent for independent expenditures do not involve any cognizable corruption. Only transactions involving a quid-pro-quo-corruption risk pose a cognizable corruption
risk. ... Influence, gratitude or access are not corruption. ... And there is no evidence that there is a problem with purportedly independent expenditures not actually being independent, as required under federal law and [Federal Election Commission] rules. If they were in fact not independent, which is a factual and enforcement issue, then they would rightly be regulated as contributions subject to contribution limits to deal with any quid-pro-quo-corruption risk. ...
"Despite considerable speculation in the media about possible coordination between candidates and super PACs, there has not been evidence of actual violation of these rules that are complex and likely not understood by non-specialists."
Whether all of it is attributable to the U.S. Supreme Court ruling, the post-Citizens United political world is certainly awash in purportedly independent political spending.
The Politico newspaper reports Republican third-party groups plan to spend about $1 billion to help the GOP win the White House and take control of Congress.
Insiders with knowledge about the groups' operations said the total includes previously undisclosed spending plans by conservative oil billionaires Charles and David Koch. The Kochs are directing funds to county-by-county operations in battleground states.
"The intensity on the right is white-hot," said Steven Law, president of American Crossroads and Crossroads GPS, two organizations founded by Karl Rove. "We just can't leave anything in the locker room. And there is a greater willingness to cooperate and share information among outside groups on the center-right."
The $1 billion in third-party money is not coordinated by the Romney campaign and the Republican National Committee, who say they plan to raise at least $800 million combined.
On the Democratic side, Priorities USA Action, the super PAC supporting President Obama's re-election, has been fairly hapless and hopes to spend about $100 million, Politico said. Organized labor also could add $200 million to $400 million in Democratic support.
Even more hungry customers for corporate funding than super PACs are 501c non-profits, who do not have to disclose information about donors.
The OpenSecrets blog of the Center for Responsive Politics in Washington says the U.S. Supreme Court ruling "allowed non-profit corporations under the Tax Code 501c to spend unlimited amounts of money running ... political advertisements while not revealing their donors." The blog said "conservative non-profit groups [have] spent $121 million without disclosing where the money came from."
In a late report, the blog said a "secretive, well-funded group whose name gives the misleading impression that it is solely concerned about healthcare gave more than $44 million in 2010 to other tax-exempt groups, many of which spent millions on TV ads attacking Democrats running for the House and Senate and have begun spending for the same purpose this year."
None of the groups, which include eight of the most politically active non-profits in 2010, disclose their donors, "and the role of the [Arizona-based] Center to Protect Patients' Rights in funding them has not previously been reported," the blog said.
Citizens United, the 2010 U.S. Supreme Court decision that drew a rebuke from Obama during his State of the Union address, was decided along the high court's ideological fault line by a vote of 5-4.
"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought," Justice Anthony Kennedy said for his fellow conservatives in the majority opinion. "This is unlawful. The First Amendment confirms the freedom to think for ourselves."
Justice John Paul Stevens, spending his last months on the high court before retiring, led the liberal dissenters.
"In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules," Stevens said. "The majority's rejection of this principle 'elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests,'" quoting an earlier dissent by the late Justice Byron White.
"At bottom, the [U.S. Supreme] Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics."
In its 5-2 ruling last December upholding 100 years of state law -- now stayed until the U.S. Supreme Court acts -- the Montana Supreme Court majority said: "Citizens United does not compel a conclusion that Montana's law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional. Rather, applying the principles enunciated in Citizens United, it is clear that Montana has a compelling interest to impose the challenged rationally tailored statutory restrictions."
One of the two dissenters, state Justice James C. Nelson said the state court had no choice but to follow the U.S. Supreme Court precedent and strike down the state law.
"The Supreme Court's decision in Citizens United is clear with regard to the First Amendment's protection of corporate political speech. ... [The state ban] impermissibly restricts such speech by prohibiting corporations from making 'an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party,'" he said. "The statute is, therefore, facially unconstitutional under Citizens United."
But even though he disagreed with the majority, Nelson conceded, "I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the exaggerated power to influence voters and elections."
Twenty-two states and the District of Columbia have filed a brief in support of Montana, asking that the Citizens United ruling not be used to strike down state laws that restrict corporate campaign spending.
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