Dear Dahlia and Judge Posner,
I’m still pondering the court’s 5-4 decision to reverse summarily Montana’s 100-year-old limits on independent campaign expenditures by corporations. This decision, to overturn the judgment of all three branches of the Montana state government without agreeing to spend one hour next fall listening to oral argument from the state’s attorney general, makes a mockery of the court’s solicitude, expressed in many other cases, for the dignity and constitutional status of the “Sovereign States.”
In Citizens United, the court opined that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Montana argues that in its state that is not the case. But the Supreme Court gives the back of its hand to the state’s argument about its own experience, and doesn’t even care to hear full argument on the point.
Of course the court’s majority did not want to hear argument on whether in Montana, or anywhere else, independent expenditures can give rise to an appearance of corruption, because the court’s conclusion in Citizens United on this point is almost surely wrong. For the majority’s point of view, the less said about that, the better.
The problem is not simply that independent expenditures can also, like direct contributions to campaigns, lead to quid pro quo payback. It’s also that in significant respects, the opportunities for corruption are in fact greater with independent expenditures than with direct contributions to campaigns.
Suppose, for example, you covet an ambassadorship for which you are not remotely qualified. You are told by those close to the candidate that the going price for nomination to a lavish country embassy in a tropical country is $10 million. If you gave the amount directly to the campaign (and if the current limits were raised to $10 million) at least that contribution would be publicly disclosed. The Senate Foreign Relations Committee, informed of your largess to the winning campaign, might be expected to probe with special scrutiny whether you had any real qualification for the office in question
But here is the key fact about independent expenditures under present law: Although the campaign will certainly be informed of your wonderful gift to the “independent” group, that fact can be kept secret from the rest of the world. There is thus no external check on buying offices or other favors from government when money flows through independent committees.
All that is not to suggest that the four dissenting Justices (Breyer, Ginsburg, Sotomayor, and Kagan) were wrong in deciding not to vote to hear the case. Their four votes would have been enough to grant review, with oral argument. But they may have feared that the court would extend Citizens United even further if presented with another case. Even reaffirming Citizens United would have been unfortunate. (Justice Hugo Black told me during my clerkship that when there were only four liberals on the court in the 1940s, they would deliberately not grant review of some cases, to prevent the majority from freshly reaffirming precedents with which the four disagreed.)
Of course, the majority may not really care whether there is an appearance of corruption in campaigns now. They apparently believe that campaign finance reformers really want to “level the playing field” by limiting the greater influence the rich can have through unlimited expenditures—a goal the majority believes is unconstitutional. The majority’s decisions invalidating limits on political expenditures may have less to do with the First Amendment and more to do with a notion that harkens to the conservatism of the early 20th century, which viewed any kind of redistribution of wealth as violating the due process rights of the rich. We saw some of that attitude in the questions some justices asked during argument in the health care case. And we may see it again in the opinions when that case is handed down.