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Russ Feingold: SCOTUS Beginning to Take Note of Judicial Disaster That is Citizens United

Sen. Feingold was interviewed on WNYC radio in conjuction with the release of his book While America Sleeps: A Wake-up Call for the Post 9/11 Era, and as the co-author of McCain-Feingold, spoke about the subject of campaign financing and Citzens United.

The former senator said he was encouraged by signs that the Supreme Court could take up the issue of corporate contributions to campaigns by hearing the Montana case that directly challenged the Court's ruling in Citizens United.

Some background on the Montana case:

... late last year the Montana Supreme Court thumbed its nose at the Supreme Court’s Citizens United decision. In Citizens United, Justice Anthony Kennedy, writing for a five-justice majority, held that the federal law barring corporations from spending their funds on election ads violated the corporations’ First Amendment rights. The Montana court nonetheless upheld a state ban on corporate campaign spending, finding that Montana’s history of corruption justified the ban.

In a statement with respect to the stay of the Montana ruling Justice Ginsburg said:

"Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ A petition [to hear the case] 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."

With [this] statement, Justice Ginsburg has signaled that she or one of the other justices opposing the Citizens United case will use the Montana case to expose the fallacy of the Citizens United argument.

Senator Feingold spoke about how Justice Ginsburg's comments were a sign of 'real stress' on the court:

The credibility of the Supreme Court is now on the line because people know this was a crazy decision, a lawless decision. And its having a huge impact on the democracy, on the right that every one of us has to have our vote basically count the same. So I saw Ginsburg’s comment as very interesting, as a sign of real stress on the court.

Justice Ginsburg said it is causing corruption in the political process. The Montana decision may be the first of many to allow them to change their thinking. Citizens United is doing great harm to the reputation of the Supreme Court - it's like the proverbial bookend to the Bush v. Gore decision. The court is beginning to take note that this is a judicial disaster that hurts the court itself.

Feingold says that re-opening the conversation would not mean the individual justices would admit they had made an error in Constitutional interpretation.

First of all they don't seem to care that much about saving face. The convoluted way in which they did Citizens United was crazy. After the Supreme Court had affirmed one part of McCain Feingold (the phony issue ad issue) a few years earlier, they just turned it around saying 'we don't want to decide this on the basis that the Hillary Clinton movie wasn't covered by McCain Feingold, we think we need to change the whole one hundred previous years of law'. That decision was a huge reversal of the direction the court had gone.

In the article cited above, Slate's legal reporter helpfully provided an example of the Court's inconsistency on the subject:

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.

Sen. Feingold continues:

All they have to do is say it was a bad decision and we reconsider. Other courts do this all the time. It's so out of line with the previous 100 years of law that a reversal would not be a big deal.

Perhaps not legally, but for democracy it would be a big deal.

Here is the whole interview:
http://www.dailykos.com/story/2012/03/09/1072621/-Russ-Feingold-SCOTUS-Beginning-to-Take-Note-of-Judicial-Disaster-That-is-Citizens-United?via=siderec