When the U.S. Supreme Court's Citizens United ruling in 2010 blasted a hole through the wall blocking corporate spending in politics, chunks of Sen. John McCain's landmark campaign-finance law were left in the rubble.
Now, the Republican senator from Arizona who drafted the 2002 McCain-Feingold Act is doing his part to make sure the Citizens United ruling does not take down more restrictions on political spending at the state level.
On Friday, McCain and his colleague, Sen. Sheldon Whitehouse, a Democrat from Rhode Island, asked the justices to uphold a Montana Supreme Court ruling that affirmed the state's century-old ban on corporate political spending.
The ban was targeted by three Montana corporations that said the state's anti-corruption law was unconstitutional under the Citizens United decision, because the government was restricting a corporation's First Amendment right to participate in an election.
When the Montana Supreme Court said otherwise, critics of corporate spending in a post-Citizens United political arena hoped the case would be an avenue to at least explore the effect of the decision, which held that companies and unions could independently spend unlimited amounts of money to support or denounce a candidate.
Evidence from the 2010 and 2012 electoral cycles has demonstrated that so-called independent expenditures create a strong potential for corruption and the perception thereof, McCain and Whitehouse wrote in their brief.
[Our] observations about both the risk and the appearance of corruption created by unlimited independent expenditures will assist the court as it decides to consider 'whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway,' the brief authors wrote, quoting liberal Justices Stephen Breyer and Ruth Bader Ginsburg.
That quotation was a sign that at least two justices wanted to use the challenge to Montana's anti-corruption law to revisit the controversial Citizens United decision. With a petition pending for the Supreme Court, the justices could let the Montana ruling stand, overturn it, or hear the case with full oral arguments and legal briefs.
Copper Kings And Corruption
The reason why Montana has become the latest battleground over corporate influence in politics is the legal reasoning behind the state justices' January ruling, which Senate Minority Leader Mitch McConnell, R-Ky. -- a longtime opponent of campaign-spending regulation -- said was in direct contravention of [the Supreme Court's] ruling in Citizens United.
The Montana case challenges the foundation of the Supreme Court's holding: that a corporation or union's independent spending for a candidate does not give rise to corruption or the appearance of corruption.
For Montana, the state's history with wealthy Copper Kings during the Gilded Age (commonly dated from 1866 to 1896) demonstrated otherwise. Voters enacted the prohibition on corporate spending in local politics in 1912, enraged over the copper barons and mining interests' domination of the state.
The Montana Supreme Court did just as [the U.S. Supreme Court] instructed. ... It determined that the state had a 'compelling interest' justifying the law, McCain and Whitehouse wrote in their brief. It noted the historical evidence of actual corruption, including vote-buying in the legislature, gubernatorial misconduct and judicial bias and bribery.
McCain Splits With GOP
In the early 2000s, campaign-finance reform helped McCain earn his Maverick tag. He partnered with former Sen. Russ Feingold, a Democrat of Wisconsin, to pass the Bipartisan Campaign Reform Act, a law at the center of the Citizens United decision.
Most of McCain's fellow Republicans rejected the law, including the lawmaker who is now the top GOP senator, McConnell.
McCain and Whitehouse's brief -- the two senators retained Neal Katyal, the Obama administration's former acting solicitor general, as counsel -- again puts the GOP senator at odds with McConnell.
McConnell submitted his own legal brief to the Supreme Court urging the justices to overturn the Montana decision.
Nothing has occurred to warrant reconsideration of Citizens United. The First Amendment barrier to [campaign-finance] legislation has not diminished. And there is no basis for concluding that any quid pro quo corruption, the only kind that this court has found relevant, has occurred as a result of the ruling, McConnell wrote in his May brief.
McCain rejected the call from McConnell and other opponents of campaign-finance regulation to overturn the Montana Supreme Court's ruling.
In the aftermath of the justices striking down federal campaign-spending restrictions, political spending has exploded, there is seemingly improper coordination between candidates and independent political groups, and disclosure rules are inadequate, according to the McCain-Whitehouse brief.
The ability to make and to credibly threaten large expenditures gives outside groups the opportunity to exert improper leverage over politicians running for office, the brief authors wrote. The lack of disclosure this makes ferreting out this quid pro quo corruption extremely difficult.
A review of the case by the Supreme Court would afford the court an opportunity to consider the implications of this phenomenon for its finding that independent expenditures do not corrupt, the senators noted.