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CREW and Other Groups File Amicus Brief to Supreme Court in Critical Campaign Finance Case

By Jeremy Miller

Today, CREW and other campaign finance reform advocates joined in asking the Supreme Court to deny review of a Montana State Supreme Court decision upholding the state’s prohibition on corporate political expenditures.  Our friend-of-the-court brief asked, alternatively, that should the Court grant review, it reconsider its holding in Citizens United that independent expenditures do not give rise to corruption or the appearance of corruption and affirm the judgment of the Supreme Court of Montana.

Late last year, the Montana Supreme Court rejected a constitutional challenge to the state’s prohibition on independent corporate campaign expenditures.  The ruling effectively invited a legal challenge because it is directly contrary to the 2010 Supreme Court ruling in Citizens United, in which the Court invalidated the longstanding federal prohibition on corporate independent expenditures.

Our brief focuses on two fault assumptions in Citizens United: (1) that so-called “independent” expenditures do not give rise to actual corruption or the appearance of corruption because such expenditures are not coordinated with the candidate; (2) that current disclosure laws would provide the public with the information necessary to reveal whether elected officials are in the pocket of moneyed interests. 

As our brief details, both of these assumptions are false.  After nearly two post-Citizens United election cycles, it is abundantly clear that hundreds of millions of dollars of undisclosed corporate funds have been raised and spent to influence voters by entities acting in close association with candidates and officeholders.  This rampant coordination and undisclosed spending give rise to both actual corruption and the appearance of corruption. 

To the detriment of voters, Citizens United opened the door to unlimited spending by 501(c) corporations that do not have to disclose their donors.  Under the current disclosure regime, super PACs are permitted to accept contributions from 501(c) corporations, yet need only disclose the fact they received the contribution, not the source of the contribution.  The ability of citizens to make informed decisions on Election Day is hindered not only by this lack of disclosure, but also by delayed disclosure and poor access to the information necessary for citizens to make informed voting decisions.  For example, numerous super PACs raising and spending unlimited funds to influence this year’s January presidential primaries did not file disclosure reports with the FEC until after the primaries.

This case may prove critically important to the future of our nation’s campaign finance regime.  If the Court refuses to review the Montana Supreme Court’s ruling, other states would be free to follow Montana’s example by enforcing or reinstating state laws prohibiting independent corporate campaign expenditures.  Experts are divided as to what outcome would result if the Court decides to review the Montana decision.