Why Justice Ginsburg May Be Ready To Lead the attack on Super PACs

Who's winning, who's losing, and why.
Feb. 20 2012 7:15 AM

Occupy the Super PACs

Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power.

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The explanation reveals a great deal. If a doctor gives emergency CPR to an unconscious person, the doctor cannot be sued later for battery even though the person was touched without consent. Though this principle is sometimes referred to as consent “implied in law,” in reality, it is the law excusing the lack of consent. In other words, a fiction.

Similarly, the statement in Citizens United that independent spending cannot corrupt or undermine the public’s confidence in the electoral process is a fiction which defies common sense. In fact, the greatest danger of super PACs is not that they will influence the outcome of elections, but that contributions to these groups will skew public policy away from the public interest and toward the interest of the new fat cats of campaign finance. The public, too, seems greatly concerned about money this election season.

Citizens United is not even consistent with the court’s own recent actions. In Caperton v. Massey, Justice Kennedy and the four Citizens United dissenters recognized that a $3 million contribution to an independent group supporting the election of a West Virginia Supreme Court justice required that the justice recuse himself from a case involving the contributor supporting his candidacy. The Caperton Court pointed to the “disproportionate” influence of that spending on the race and at least an appearance of impropriety. 

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It is also in tension with the Supreme Court’s recent decision to uphold the laws barring independent foreign spending in U.S. elections. If such independent spending really “does not give rise to corruption or the appearance of corruption,” as Justice Kennedy wrote in Citizens United, what’s the danger if the Chinese or Iranian government wants to flood tight congressional races with millions of dollars?

If the court were being honest in Citizens United, it would have said something like: We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption, at least when the spending comes from corporations and not foreigners. But the court didn’t say that, because it would have faced even greater criticism than it already has. So it dressed up its value judgment as a factual statement.

Justice Ginsburg seems poised to use the Montana case to expose the false premise at the heart of the Citizens United case. If we are lucky, she’ll convince one of the justices in the Citizens United majority of the error of his ways. At the very least, she will speak truth to power.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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