Professor Kang: Court Holds Firm with Montana Case
By Michael S. Kang
In American Tradition Partnership Inc. v. Bullock, the Supreme Court confirmed it has no intention of stopping the rapid deregulation of campaign finance that it set off a couple years ago in Citizens United v. FEC.
Citizens United, it is fair to say, transformed campaign finance law. Although the case technically dealt with only corporate electioneering, the larger impact of the decision has been to constrict severely the degree to which the government can regulate independent expenditures (essentially explicit campaign speech) by any speaker.
Citizens United set off a chain of events, as lower courts and the Federal Election Commission took its cues from the decision, leading to new, so-called Super-PACs that can raise money in unlimited amounts from wealthy individuals, corporations, and other groups. The obvious result has been far more money in politics. One study projected that election spending this year will total almost $10 billion, up roughly $3 billion from 2008, before Citizens United. In today’s politics, as an editor from the Center for Public Integrity put it, “One hundred thousand dollars is nothing now—$1 million is the new $100,000.”
This June, in American Tradition Inc. v. Bullock, the Court rejected a chance to reverse this new avalanche of money into politics. The plaintiff corporations challenged a Montana state law prohibiting corporate electioneering, very similar to the federal laws struck down as unconstitutional in Citizens United.
The case, thus, presented a chance for the Court to overrule Citizens United—a chance that some campaign finance reformers like Harvard’s Larry Lessig predicted the Court would seize. But the Court summarily reversed in the case and therefore upheld Citizens United virtually without discussion. Citizens United, and “The End of Campaign Finance Law” that I describe in my Virginia Law Review article with that title, is here to stay.
Kang is a professor of law whose areas of expertise include election law, business associations, politics and democratic governance.