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Intro: "Is there really a chance that the Supreme Court might reconsider Citizens United? A week ago, I wouldn't have thought so, and I still think it's an extreme long shot. But a provocative statement last Friday by Justices Ruth Bader Ginsburg and Stephen G. Breyer makes this crazy idea worth pondering - which is undoubtedly what the two justices intended."

San Diegans rally against Citizens United decision. (photo: Zengers Newsmagazine)
San Diegans rally against Citizens United decision. (photo: Zengers Newsmagazine)

Will the Supreme Court Reconsider Citizens-United?

By Linda Greenhouse, The New York Times

23 February 12


s there really a chance that the Supreme Court might reconsider Citizens United?

A week ago, I wouldn’t have thought so, and I still think it’s an extreme long shot. But a provocative statement last Friday by Justices Ruth Bader Ginsburg and Stephen G. Breyer makes this crazy idea worth pondering – which is undoubtedly what the two justices intended.

Their three sentences were attached to an order issued by the full court granting a stay in a case from Montana on the right of corporations to make independent political expenditures. We all know, from the Citizens United decision two years ago, that corporations have a robust First Amendment right to spend as much as they want on politics, a right they are exercising to the hilt in the current election season.

However, the Montana Supreme Court saw things quite differently in a decision it issued two months ago. Voting 5 to 2, the state court rejected a constitutional challenge to a century-old Montana law that bans corporate political contributions and expenditures unless made through a tightly circumscribed political action committee.

A majority acknowledged the United States Supreme Court precedent, as it had to. But it then went on to say that “Citizens United does not compel a conclusion” that Montana’s law is unconstitutional. “While Citizens United was decided under its facts or lack of facts,” the state court said pointedly, Montana is different: although the Citizens United majority could find no evidence that corporate political spending led to corruption, Montana’s history is replete with proof. Mining interests controlled the state judiciary and legislature for decades, at one point buying a United States Senate seat for a favored candidate, W.A. Clark, through such flagrant bribery that the Senate, after an investigation, actually threw him out. (In the days when legislatures appointed United States senators, he was later able to buy his way back.)

This history led Montana voters to adopt the corporate ban by referendum in 1912. The state’s lasting vulnerability “to continued efforts of corporate control to the detriment of democracy,” the state Supreme Court said, provides the “compelling interest” that makes the law constitutional today.

Unsurprisingly, James Bopp Jr., the lawyer who represented Citizens United and who now represents the three non-profit corporations challenging the Montana law, asked the justices in Washington for a stay while he could prepare a formal appeal, which he suggested would be a mere formality. “The lower court’s refusal to follow Citizens United is such an obvious, blatant disregard of its duty to follow this court’s decisions that summary reversal is proper,” Mr. Bopp wrote in the introduction to his 36-page stay application in American Tradition Partnership Inc. v. Bullock.

The justices didn’t take up the lawyer’s invitation to simply overturn the state court ruling, at least not now, but they did grant the stay, without any noted dissents. In their separate statement, Justices Ginsburg and Breyer seemed not to buy the “Montana is different” rationale, instead viewing the state court’s ruling, despite its protestations to the contrary, as simple defiance of Citizens United. “Lower courts are bound to follow this court’s decisions until they are withdrawn or modified,” the two justices observed.

Their point, rather, was that the Supreme Court itself should use this case as a vehicle to reconsider Citizens United. “Montana’s experience and experience elsewhere,” they said, “make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ ” (The words they quoted are from Citizens United.) They went on to say that the appeal “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.”

That would be a huge leap for the Citizens United majority – which included neither Justices Ginsburg nor Breyer. Justice Anthony M. Kennedy, who wrote the decision, and the four justices who joined him are all still on the court, while three of the four dissenters remain: Justices Ginsburg, Breyer and Sonia Sotomayor.

Furthermore, their reference in their statement to “corruption or the appearance of corruption” lacks the full context in which the majority suggested that proof of either could provide the requisite justification for limiting corporate speech. Justice Kennedy’s opinion made clear that the majority was talking about corruption in a very particular sense, specifically “quid pro quo corruption,” defined as “dollars for political favors.” Justice Kennedy went on to say that “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” In other words, to find a compelling interest in limiting corporate political spending, the Citizens United majority wants to see proof that huge corporate expenditures are not only queasy-making but indictable.

Nonetheless, Justices Ginsburg and Breyer are savvy players, and their statement, gratuitous as a legal matter, has to be taken as strategic. So what was the strategy? To keep the public conversation going? To encourage a broader pushback? To induce Justice Kennedy to re-examine his basic assumptions in light of what’s happened since the day in January 2010 when Citizens United burst upon the political landscape? All of the above?

No one likes to admit a mistake, and being a Supreme Court justice means never having to say you’re sorry – or almost never. True, the court reversed itself on gay rights in the 2003 Lawrence v. Texas decision, but three of the five justices comprising the anti-gay rights majority 17 years earlier in Bowers v. Hardwick had left the court. Repudiations of precedent are nearly always the result of a change in membership rather than a change in perception.

More directly relevant, I think, is one of the most fascinating episodes in Supreme Court history, the court’s rapid reversal during the early 1940s on the question of whether Jehovah’s Witness children had a constitutional right to refuse to salute the flag. Only three years separated the 8-to-1 decision in Minersville School District v. Gobitis, in which the court held that “national cohesion” justified requiring the patriotic gesture by schoolchildren whose religion forbade it, from West Virginia State Board of Education v. Barnette, which upheld the children’s right under the First Amendment to “differ as to things that touch the heart of the existing order.” The second decision, with a majority opinion by Justice Robert H. Jackson, is one of the most eloquent endorsements of free expression the court has ever issued. The vote was 6 to 3.

What happened? Two members of the new majority, Justice Jackson and Justice Wiley B. Rutledge, had joined the court since the Gobitis decision. But three others – Justice Hugo L. Black, William O. Douglas, and Frank Murphy – simply changed their minds. The first decision, issued as World War II was raging in Europe, was widely, if mistakenly, viewed as an official labeling of Jehovah’s Witnesses as traitors. Mobs burned down the religion’s Kingdom Halls, and thousands of children were expelled from schools around the country. Children were beaten and bullied.

Recounting these events, Professor Douglas E. Abrams of the University of Missouri Law School wrote recently that “the intensity of the post-Gobitis brutality surprised and likely shocked justices who had not anticipated such a bloody backlash against the small, peaceable religious group that had summoned their protection.” The court’s about-face was widely hailed. “Blot Removed” was the headline that Time magazine – hardly a liberal organ in the 1940s – put on its report of the second decision.

I have no idea whether Justices Ginsburg and Breyer had the flag-salute cases in mind when they called on the court last week to take account of the real-world impact of Citizens United. For all I know, Justice Kennedy, a wordsmith in his own right, regards his Citizens United opinion as the most ringing endorsement of free expression he has ever written. If so, then the Ginsburg and Breyer statement will have no greater effect than the thwarted effort by members of the Occupy movement to claim the Supreme Court’s plaza on the decision’s second anniversary last month.

As I said, a long shot, but an intriguing one. And no matter what the justices do next about Citizens United and the Montana Supreme Court, the conservative members of the court have their own do-over target. The court’s decision this week to hear a constitutional challenge to the affirmative-action admissions plan at the University of Texas raises the unmistakable prospect that diversity as a rationale for taking race into account in higher education will soon be history.

It’s nine years since the court, in Justice Sandra Day O’Connor’s majority opinion in Grutter v. Bollinger, upheld a race-conscious admissions plan at the University of Michigan Law School and declared that affirmative action had 25 more years to run. The crucial date, it turns out, proves to have arrived rather sooner: Jan. 31, 2006, when Justice O’Connor left the court and Justice Samuel A. Alito Jr. took her place. Since then, the Roberts court has bided its time, waiting for the right case. The do-over season has dawned. your social media marketing partner


A note of caution regarding our comment sections:

For months a stream of media reports have warned of coordinated propaganda efforts targeting political websites based in the U.S., particularly in the run-up to the 2016 presidential election.

We too were alarmed at the patterns we were, and still are, seeing. It is clear that the provocateurs are far more savvy, disciplined, and purposeful than anything we have ever experienced before.

It is also clear that we still have elements of the same activity in our article discussion forums at this time.

We have hosted and encouraged reader expression since the turn of the century. The comments of our readers are the most vibrant, best-used interactive feature at Reader Supported News. Accordingly, we are strongly resistant to interrupting those services.

It is, however, important to note that in all likelihood hardened operatives are attempting to shape the dialog our community seeks to engage in.

Adapt and overcome.

Marc Ash
Founder, Reader Supported News

+80 # Klanders 2012-02-23 12:17
Reconsideration of the "Citizens United" decision is a long shot, but must be considered as a strong possibility as the current state of Campaign Financing as we have witnessed so far, leaves the "barn door" open for massive, and excessive, abuse and subverts the overall intention of freedom of speech, and individual voter participation in open and free elections.
+102 # Barbara K 2012-02-23 12:21
They certainly should reconsider. Thomas and Scalia have shown their biases and should be recused if it is reconsidered. It is the only fair thing to do, as the court was obviously stacked against the people when it was first decided, and that should make that decision null and void.

Vote Democratic

Get our rights back
-46 # YELLOWDOG 2012-02-23 13:28
I agree. There is, however, a positive thing about CU. Think about all the $$ flooding into the economy now, another stimulus that is bound to reach down to 'little people'. I'm sure that is not what the supremes intended at all.
+75 # ToLo 2012-02-23 13:42
Funny... none of it has trickled down to me that I can tell. I feel more "trickled ON."
-29 # YELLOWDOG 2012-02-23 15:01
Do you work in a hotel, cook/serve food/drinks, drive a taxi, work in tv, IT? just saying...
+40 # AndreM5 2012-02-23 15:54
Get real. Virtually ALL of the campaign money goes to the corporate media who in turn control so many of the representatives .
0 # 2012-02-23 21:35
Yellow Dog...just saying what???
+6 # Karlus58 2012-02-23 18:52
Hey..what's this guy talking about? Ridiculous.
+7 # phrixus 2012-02-24 09:48
Voodoo economics has been empirically demonstrated not to fulfill its vaporous "trickle-down" promise.
+13 # 2012-02-23 21:33
You are so right, Barbara K! Super Pac unlimited funding promoting negative ads and bribes for favors should be stopped. Political candidates should be focusing on crucial issues, such as the economy, helping the people and saving the earth. Not only should Thomas and Scalia be recused for their biases; Clarence Thomas needs to be recused, rather than excused for his overt lack of ethics.
+59 # artful 2012-02-23 12:23
The Supremes are now totally corrupt. Plus, they seem to have adopted the stance of the Nazi pope--we are infallible.
+3 # RLF 2012-02-24 07:26
The Supremes, like our representatives and president, are on the corporate dole...not out right but with hunting and golfing trips and lots of other nice perks from the kings of capital.
+23 # bugbuster 2012-02-23 12:37
Citizens United highlights a defect in the US Constitution: The First Amendment is too vague. That needs to be fixed.
+67 # Reductio Ad Absurdum 2012-02-23 13:22
I empathize with your intent, but not your strategy.

The defect is in the court, not the amendment. If the court can't tell the difference between "a person" as the founders intended the term to be used (by the way, is there ANY historical proof it was ever used in any other way? NO), then the court could screw up ANYTHING — revised amendment or not.
+2 # bugbuster 2012-02-24 14:11
The problem is that the Constitution needs better idiot-proofing.

Citizens United is an idiotic decision, but probably not a breach of "good behavior" as would be required for the dismissal of a justice. Dismissing justices because they make unpopular decisions is a slippery slope we don't want to slide down.
+3 # Cliff 2012-02-26 13:45
Republicans are proof that it is impossible to idiot-proof anything. When someone or is unable to listen, it doesn't matter what is right and wrong.

We must pester them with the points. A corporation is an entity with no heart and soul. It survives only for profit.

I will believe that a corporation is a human when we can execute them.
+32 # billybookworm 2012-02-23 12:44
As Justice Kennedy said: “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.”
Remove the word "elected" and tell me whose backside Kennedy may have been covering? He seems a little defensive for some reason.
+55 # MsAnnaNOLA 2012-02-23 12:53
Let's stop waiting for the Supremes to reconsider this abomination. We need congress to act. Citizen's United is good for no one in this country except the five guys fueling the GOP nomination presently.
+9 # noitall 2012-02-23 17:51
Don't hold your breath Ms, how many issues have we needed Congress to act on? That's the only bullet they have: NO ACTION.
0 # trapiche 2012-04-09 17:51
Congress can't do it, at least not alone. It would require a constitutional amendment.
+63 # angelfish 2012-02-23 13:00
Corporations are NOT people! Mega-Millionair es should NOT be allowed to BUY our Presidency! If this Travesty isn't repealed by the SCOTUS, the ones who approved it should be IMPEACHED! They have NO business over-seeing the highest Court in our land and have shown COMPLETE lack of Judgment and Integrity by their actions in this matter!
+16 # noitall 2012-02-23 17:53
I agree, whenever you have issues as important as those that make it to the supreme court decided by a simple majority, something is wrong as them cutting off the re-count in Florida and giving the presidency to Jr. Bush. Bastids!
+27 # bluepilgrim 2012-02-23 13:02
I was reminded once again, in the excellent new video at
"Let Your Life Be a Friction to Stop the Machine"

that there was never a court decision that corporations were people or entitled to all the same constitutional protections, but that it came about through a court clerk's annotations on a case, without legal force behind them. See

Corporate personhood is the result of the law, in practice, being mostly an instrument of the rich and powerful, applied selectively -- or fictionalized -- for the oligarchy's advantage.
+55 # Larry 2012-02-23 13:13
Publicly held corporations don't spend millions of dollars without the expectation of receiving something tangible in return; to do so would be a waste of corporate assets, and would subject the directors to liability via a shareholders' derivitive action. Surely the justices understand this, just as they understand from such a revered and closely held authority as the code of legal ethics, that even "the appearance of impropriety" in the function of government is harmful.

It doesn't take a Supreme Court justice to realize that unlimited corporate spending on elections creates not merely the appearance, but indeed a vertiable petri dish for public corruption.

Citizens United is an ugly stain on the body of our constitutional law; it must be removed either by the Court's reconsideration or by constitutional amendment.
+7 # 2012-02-23 21:44
Larry: What if the real citizens of the US united and filed a petition? These petitions are working slowly but gaining ground, such as in Madison, WIS. The recall of Scott Walker has become a national project. It's on the Internet, Facebook, etc. and getting a lot of attention.
+7 # X Dane 2012-02-24 21:38
Yes dorian, the Wisconsinites collected about a million Petitions to recall Walker, all they needed was 500.000. I am so impressed with them, and their resolve.
I sure hope they will be able to get rid of him.
+1 # 2012-02-25 20:41
I'm with you, X Dane
+5 # jimyoung 2012-02-23 23:55
No matter how difficult, I prefer a Constitutional Amendment so they never again get a chance to so grossly warp our system.
+46 # MizKatz 2012-02-23 13:21
If Citizens United is not revoked, and corporations are still considered to be "people", then it is time for corporate leaders -- especially those with the energy companies -- to be indicted for voluntary manslaughter for the needless and tragic deaths caused by their negligence profit-driven decisions. People -- real people -- are indicted for manslaughter and too should the other "PEOPLE" (ha!) who cause the death of innocent people.
+17 # LeeBlack 2012-02-23 13:22
I wonder what today's religious right people think of the decision to let Jehovah's Children refrain from saluting the flag.
+2 # 2012-02-23 22:37
Lee Black: Good question!
+13 # LeeBlack 2012-02-23 13:23
James Bopp Jr was on Terry Gross's show today. I have never heard such convoluted reasoning.
+6 # 2012-02-23 22:11
You must not have listened to the Republican debates last night. The only sane comment I heard was when Ron Paul was asked why he called Santorum a"fake" in an ad and he answered "Because he's a fake'! Their comments were all archaic and convoluted but Rick Santorum is the most irrational and dangerous; both politically and psychologically . He's gone from his former "grandiosity" to
sounding paranoid and delusional. Even the GOP Tea Party audience was booing after several of his comments.
+8 # Buddha 2012-02-24 15:34
Yeah, then Ron Paul, the Libertarian, says that "immorality" is what is driving the use of contraceptives? A Libertarian saying sexual activity not for the purposes of procreation is "immoral"? He also wants abortion illegal, according to recent statements. Who's the fake here? Answer: all of them.
+38 # Dion Giles 2012-02-23 13:26
It is hard to see corrupt Supreme Court judges suddenly becoming honest. The whole governance system is broken, and has been ever since the crooked judges installed Bush as President.
+17 # grouchy 2012-02-23 13:29
I think the big question here is whether they are willing to admit to making a great big boo-boo! I'm betting they are too arogant to do so and loose face.
+9 # noitall 2012-02-23 17:57
It wasn't a "BooBoo", it was an act of agression. Certainly picking Bush was and look what that led to. If the people realized what is going on around them, they might end up demonstrating in the street...or not.
+29 # davidr 2012-02-23 13:40
Unlimited political contributions are per se corrupt. Appearances shmear-ances. Currently, it seems that 25% of all money contributed to the Republican contestants has been given by 5 individuals. To imagine (i) that a candidate would not trim his positions to suit such donors or (ii) that a donor would not expect a return on such investment is to imagine people that could never be.
Alan Greenspan assured us that the best way to manage financial risk was to let the market self-regulate. After the collapse he admitted only to one flaw in his hypothesis: that it was inconsistent with human nature. Citizens United has the same flaw: it works fine, but not on earth.
A political contribution implies an expectation on the part of giver and recipient. In that respect, it is pretty much the same as a ballot. Politicians do what they have to do to get our vote or our donation, and we give both of those to serve our own point of view. Yet we can’t cast unlimited ballots. One is a reasonable number. There is also a reasonable amount of money that we can agree should be a limit to political contributions. If money is speech, then so much more so is voting. If one man one vote isn’t unconstitutiona l, then one man $2,500 isn’t either.
+35 # ToLo 2012-02-23 13:45
Apart from the absurdity of Corporations being considered as people, those who own and operate corporations have voices of their own, do they not? CU gives them a second, much louder voice - and one with which they may not even agree. I only have one voice; why do the likes of the Koch brothers get two?
+7 # noitall 2012-02-23 17:58
Two voices and thousands of votes.
+20 # dick 2012-02-23 14:01
Citizens United is working EXACTLY as the Court hoped it would.These are people who blatantly STOLE a presidential election & DARED us to object. Again, we whimper & whine.
The people of Wisconsin have shown what is possible via SUSTAINED total mobilization, as opposed to Tweety grumbling.
The elections next fall, limited as they may be, should look more like a non-violent uprising than stopping off at the polls, if convenient. ps-And, Koch brothers have HUNDREDS of voices.
+3 # animas 2012-02-23 14:51
Heck... if voting made any real difference, they'd outlaw it! I have absolutely no faith in the Repubs, and only virtually none in the Dems. and that includes Obama. The boat seems to be sinking regardless of how we deluded ourselves. I fear that we are on a race to the bottom and it won't matter whether repubs or dems are clutching the stirring wheel. Big business will bicker til the bitter end....
+6 # 2012-02-23 22:32
Big business owns the politicians as long as we have Super Pacs, Citizens
United and the SC protecting corruption, bribes and hypocricy; but that doesn't mean the people cannot rise and protest. The problem with this is that most of us feel hopeless in regard to the status quo situation and helpless about doing anything to affect change, which is exactly what WS and the politicial candidates want. To keep the people divided, distraught and too intimidated to unite. This was evident in the Republican debate last night.
+9 # Majikman 2012-02-23 22:50
Justice Kennedy went on to say that “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” Really? Does he really mean us to believe that beaucoup $$$ given to a politician isn't bribery? Bribery isn't corruption? Just a little baksheesh among friends?
Even with thousands of our "influential" voices in petitions...we don't prevail.
My head wants to explode.
+6 # jcdav 2012-02-24 07:48
Yeah, This is not the world i wanted to pass on to my son, I've been to 2 OWS camps, God bless them! I've begun unassing writing to papers, marching again (gotten creaky since the 60's) and talking to young folk - trying to give them some historical perspective on the morass we currently have. I would like to see non-violence prevail, but the system is only responding with violence thus far.
My head and heart ache - this is not the country i was proud of, it has been hijacked by thugs. WORK FOR CHANGE!
+3 # jimyoung 2012-02-24 00:03
Given the Courts record since the 2000 election, why should we give them another chance? We need better laws or amendments to start taking some of the choices away from them.
+3 # Martintfre 2012-02-24 07:22
//Will the Supreme Court Reconsider Citizens-United?//

I certainly hope so.
Facts are::
Rights are inherent in the individual,
We created government to protect those rights,
Government created corporations.

Inherent rights exist with or with out government. Like a right to life No one, no gang, no government can give you life - once they take it away it is gone.

Political privileges are not inherent rights - most people do not grasp that concept - and therein lies much of the problem. A corporation's existence is a political privilege - A corporations existence requires government to exist.
+2 # Martintfre 2012-02-24 07:32
When ever you see a 5-4 decision one fact can't be denied -- at least 4 of them got it wrong.
+2 # jimyoung 2012-02-24 11:32
In some cases 5 got it wrong. One of the things that removed all doubt for me, from

“So what can a corporation do to protect itself against punitive-damage s awards such as this?” Roberts asked in court.
The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. “Well,” he said, “it can hire fit and competent people.”
The rare sound of laughter rippled through the august chamber.

Listen to the audio, from Feb 27, 2008, to get a better feel for the innocent, hesitant, if a bit timid, tone that Fischer used, and the inability, no matter how hard they tried, for the rest of those in the court to keep from laughing at Roberts' obvious bias.
+8 # Windy126 2012-02-24 15:52
Well, I sure as hell don't have the money to fight them but I still have my voice and a computer. I will speak out to anyone anywhere to make my thoughts know and I will blog until the cows come home. Maybe just maybe I might get through to someone somewhere.
+6 # Psyche 2012-02-25 17:05
In my opinion, the conservative hacks on the SCOTUS will only double down. They will not admit to any misjudgments or mistakes. They are toadies, in the pocket of corporations. I think 3 of them are tools of A.L.E.C. It is no secret they have been participating in the works of that uber, reich wing group. They have attended "secret" meetings with the organization. Scarey, ain't it.
0 # RJB 2012-03-01 14:20
A new definition of democracy entails the right to buy whatever you want. Each of your dollars represents a vote for or against a product, a candidate, anything, everything. Thus we have the commodification of culture. Everything is now measured in dollars and cents. This insanity derives from Milton Friedman and progenitors from the Chicago School of Economics and was generously funded by the likes of David Rockefeller. It's been three decades in the making, and It's taken hold among the 1%.

If you're rich you have lots of votes. If you're poor, well, you're told that you too can climb the severely tilted playing field to join the ranks of those whose opinions count.

The 1% simply doesn't care whether or not you like the new "spirit of the ages" as Noam Chomsky refers to it. Shut up and watch TV!

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