text: © Stephen Coburn - Fotolia.com 
   
   Note: This story has been updated for clarity. 
   
   Before the Republican winner of the Iowa Caucus had been determined on Tuesday night, Vermont’s independent Senator Bernie Sanders appeared on the set of Comedy Central’s The Colbert Report, touting a new book and his petition to overturn the 2010 U.S. Supreme Court Citizens United v. Federal Election Commission decision by way of a Constitutional amendment. “Corporations are not people,” Sanders told host and satirist-comedian Stephen Colbert, who portrays a right-leaning pundit on the show. “They do not have freedom of expression rights in terms of buying elections.” 
   
   
   
   Sanders has not been standing his ground alone. From the Iowa campaign trail to the Montana Supreme Court, and from New York to California, the wake of Citizens United has rippled across the country this week in a range of political, judicial, and media encounters—a veritable mélange of sudden (and sobering?) reckoning with the ruling that changed the parameters for corporate involvement in American political life. 
   
   
   
   
   
   
   
   Two years ago this month, the high court ruled that corporations have First Amendment free speech rights and that they can make unlimited donations for electioneering, making way for anonymous political spending and the formation of super PACs, which are not limited in how much money they can receive from corporate donors. 
   
   
   
   Until now, the only real-world electoral testing ground for the ruling had been the 2010 midterm Congressional elections. But with the semi-official start of the presidential election season in Iowa, the influence of super PACs came rushing to the fore. The New York Times chronicled the demise of Newt Gingrich’s campaign in light of the negative attack adds run by Restore Our Future—the multimillion dollar super PAC that backs Mitt Romney and is run by former Romney aides: 
   
   Democrats and Republicans alike have singled out the $2.8 million-and-counting air deluge as the biggest factor in Mr. Gingrich’s precipitous drop in polls of Iowa voters and Mitt Romney’s corresponding rise, reshaping the critical first contest of the Republican primary season to Mr. Romney’s benefit. 
   
   
   
   The ads, which continue to blanket Iowa days before the caucuses here, were created and paid for by people with deep knowledge of the Romney campaign’s strategic thinking, close relationships with Mr. Romney’s most generous donors, and even research on what television viewers like and dislike most about Mr. Romney himself. 
   
   In an article titled “Newt Gingrich Suffers from Super PAC Buyer’s Remorse,” Politico recalled that two years ago Gingrich heralded the Citizens outcome as a “great victory for free speech,” but has now referred to the toll of the Restore Our Future ads as having been “ ‘Romney-boated’ by his chief opponent’s ‘millionaire friends.’ ”: 
   
   Though Gingrich says he still supports the court decision, Citizens United v. Federal Election Commission, his shift in attitude illustrates the difficulty that the free-wheeling big-money election landscape can pose for politicians—even, and perhaps especially, conservatives who philosophically oppose campaign rules as restrictions on free speech. 
   
   That irony was not lost on Harvard Law professor Lawrence Lessig, who told Democracy Now that Gingrich reaped a “certain sweet justice” at the polls. Lessig, the author of a new book entitled Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It, is also in favor of amending the Constitution to expunge big-money influence on elections. 
   
   
   
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   Subscribe to Corporate Counsel ||||| Despite the political carnage suffered by Republican presidential candidates at the hands of super PACs in Iowa, conservatives show no signs of buyers’ remorse after supporting the Supreme Court decision that opened the floodgates for the unlimited campaign money that fueled them. 
   
   Tuesday’s Iowa caucuses were the first presidential battleground where the political world got a look at the game changing power of the Citizens United v. Federal Election Commission decision that led to the rise of super PACs. But not even Newt Gingrich, who regularly complained about the pounding he took from a pro-Romney super PAC, was backing off his support for the decision. 
   
   Asked on Wednesday on MSNBC if he had any second thoughts about Citizens United after falling victim to the decision’s unintended consequences, he answered, “No, I’m not the victim of that. I’m the victim of one particular person, Mitt Romney, whose staff went out and decided to run a deliberately negative and dishonest campaign.” 
   
   He continued, “This particular approach, I think, has nothing to do with the Citizens United case, it has to do with a bunch of millionaires getting together to run a negative campaign and Gov. Romney refusing to call them off and refusing to be honest about it.” 
   
   Gingrich went on to argue that outside attack groups existed long before the 2010 Citizens United decision, citing the Swift Boat Veterans for Truth, which, in 2004, savaged Democratic presidential candidate John Kerry’s military record. 
   
   It’s a sentiment that other Republican insiders echoed. 
   
   “Every cycle there is a new vehicle as the law changed,” said a GOP super PAC consultant. “Campaigns have always run negative ads. The vehicle may be different, but the ads certainly weren’t.” 
   
   And, thanks in large part to super PACs, there was no shortage of negative ads. In Iowa, the pro-Romney Restore Our Future PAC spent about $2.7 million on television ads while Romney’s campaign spent about half that amount, according to National Journal's Hotline. 
   
   The same goes for Rick Santorum, albeit on a much smaller scale than his front-running rival. Santorum, who finished second to Romney by eight votes, spent about $4,000 on TV ads in Iowa while the pro-Santorum Red, White and Blue Fund dropped more than half a million dollars in ads to boost the former Pennsylvania senator. 
   
   Meanwhile, fourth- and fifth-place finishers Gingrich and Rick Perry, respectively, dropped more money into Iowa television than the super PACs supporting them did. Perry’s campaign spent almost $4 million on TV while the pro-Perry Make Us Great Again PAC kicked in about $1.5 million. Gingrich, meanwhile, spent almost $950,000 on ads and the super PAC supporting him, Winning Our Future, spent about $265,000. 
   
   The GOP primary, several insiders said, gives Republicans an opportunity to experiment with and sharpen their super PACs as they prepare for a general-election showdown with President Obama, who will have the incumbent’s fundraising advantage. 
   
   “Whoever the Republican nominee is, they are going to be behind in the money game and they’re going to want these super PACs helping the Republican candidate by going after the president,” said Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation. 
   
   Von Spakovsky, a former FEC member, said he welcomed the super PACs and the increase in political speech they create, arguing that they are a response to the artificially low limits on what candidates themselves can raise. 
   
   GOP super PACs will be particularly useful this summer in the dead zone after the primaries and before the nominating convention when the PACs can begin running ads defining Obama, said Evan Tracey, a George Washington University political communications professor and former media analyst. 
   
   “The problem will be that one of these PACs will do more harm than good,” he said, explaining that there is real danger of a super PAC jumping the nominee’s message and wearing it out. 
   
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   On the rare occasions when the world talks to you in stereo, it’s a good idea to set aside your knitting and listen. This week, Americans got their first good look at what super PACs—political organizations that can receive unlimited corporate contributions and make unlimited expenditures for federal candidates—have wrought in Iowa. At the same time, the Montana Supreme Court issued a stunning opinion last Friday, upholding the state’s law limiting corporate election spending. Think of the two as a sort of woofer and tweeter for life in a post-Citizens United world. 
   
   Dahlia Lithwick Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus. 
   
   
   
   The impact of the so-called super PAC on the Iowa election has been profound. Just ask Newt Gingrich, who was clobbered by almost a third of the more than $14 million in super-PAC ad money spent in the weeks before the caucus. When the court handed down that decision in 2010, it assumed both that these expenditures would be independent of the candidate’s official campaigns (they’re not; one is financed by Jon Huntsman’s dad) and that disclosure rules would ensure that Americans knew who was buying and selling their elections (we don’t). 
   
   Ruth Marcus has a great piece explaining all the ways in which the super PACs are both coordinating with campaigns and evading federal disclosure requirements. She notes that this was the inevitable consequence of both the Citizens United decision and subsequent lower-court rulings. Whether he meant to or not, she writes, Justice Anthony Kennedy, with his majority opinion in that case, managed to “clear the path for independent expenditure committees backing a particular candidate—and bankrolled by the candidate’s father or run by his former top aides.” 
   
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   Democracy 21 issued a report today questioning whether these candidate-specific super PACs can possibly meet the legal requirements of “total independence” from the campaigns, as required by the language of Citizens United. That’s the problem when you give corporations the same First Amendment rights as citizens. It’s not just that the resulting citizens are louder and meaner than regular people. They also refuse to tell you who they are and how much a gently worn candidate is selling for these days. 
   
   Prof. Richard L. Hasen explained all this back in October, pointing out that the fundamental flaw in Justice Kennedy’s majority opinion in Citizens United lay in his assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That sentence opened the door to super PACS and ignored the reality of everything we all know about the corrupting influence of unlimited money on a political campaign. 
   
   Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does. The Montana law was enacted in 1912 and provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." After the Supreme Court handed down the Citizens United decision in 2010, many similar state laws were struck down by the courts or repealed, and a lower court in Montana agreed that the Montana ban was unconstitutional as well, finding that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.” 
   
   But by a 5-2 margin, Montana’s high court determined that the state law survived “strict scrutiny” because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United. In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.” Noting that, back in the last Gilded Age, Montana's wealthy "Copper Kings" bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban. 
   
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   McGrath lays it out this way: “The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections?” The majority went out of its way to note that unlimited campaign spending on judicial elections is also having a profoundly damaging effect on judicial integrity all around the country. 
   
   Two justices dissented from this view, insisting that the court was bound to follow the decision in Citizens United. But one of the two dissents, Justice James C. Nelson, unloaded on that Supreme Court decision with Scalia-like levels of derision and scorn. “Corporations are not persons,” writes Nelson. “Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creatures of government." Just in case that wasn’t crystal clear, Nelson goes on to add that “while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons." 
   
   There’s a lot to love in both the majority opinion and Nelson’s heartfelt dissent. But as Eugene Volokh notes, the opinion practically begs to be overturned at the Supreme Court. (Dissenting Justice Nelson agrees and even says the court will summarily reverse it.) But whereas Justice Kennedy’s opinion in Citizens United seemed to be rooted in the thin vapors of his own aspirational First Amendment thinking, the Montana Supreme Court fixed its focus on the actual corrupting influence of the groups suing to overturn the ban. Thus Western Tradition Partnership, the lead plaintiff in the case, merits extra special scorn from the court for circulating a fundraising brochure that said, “If you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you made this program possible.” The majority openly accuses WTP of being responsible for “a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements.” The Montana majority, in other words, knows exactly what Justice Kennedy seems to have missed: That corruption is corruption regardless of its packaging, and that it rarely comes with a detailed disclosure label. 
   
   More fundamentally, the majority and one dissenter seem to understand perfectly how much the American people resent being lied to about the burning need for courts to step in to protect the oppressed voices of powerless corporate interests. As Judge Nelson wrote in dissent, “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.” ||||| Not long ago Newt Gingrich seemed to be a big fan of super PACs. 
   
   The former House Speaker two years ago called the new legal framework that gave rise to unlimited fundraising by outside groups a “great victory for free speech” and predicted that the biggest of the recent federal court decisions deregulating campaign rules would make “it easier for middle-class candidates to compete against the wealthy and incumbents.” 
   
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   Then he got a taste of the new rules in Iowa. 
   
   After weeks of withering attacks by a super PAC supporting his rival Mitt Romney, Gingrich won’t stop talking about the injustices of unchecked spending — specifically the $3 million spent attacking him. He even coined a name for it, saying he got “Romney-boated” by his chief opponent’s “millionaire friends.” 
   
   Though Gingrich says he still supports the court decision, Citizens United v. Federal Election Commission, his shift in attitude illustrates the difficulty that the free-wheeling big-money election landscape can pose for politicians — even, and perhaps especially, conservatives who philosophically oppose campaign rules as restrictions on free speech. 
   
   “It’s one thing to oppose regulation in theory, but when they hit the practical reality of millions of dollars of negative ads, they don’t like the way the new system works,” said Trevor Potter, a former Federal Election Commission chairman and top adviser to Sen. John McCain, who authored the seminal 2002 McCain-Feingold bill restricting campaign fundraising and spending. 
   
   Romney, for his part, has also of late bemoaned the rise of super PACs. But he, too, supported one of the landmark Supreme Court decisions that set the stage for the explosion of outside groups, and he even appeared at fundraisers for the super PAC that eviscerated Gingrich. 
   
   McCain-Feingold and other campaign regulations were gutted by a series of federal court rulings in the past few years, capped by the 2010 decisions in cases brought by the conservative groups Citizens United and SpeechNow.org. They paved the way for the new breed of political action committee known as super PACs and other nonprofit groups to raise unlimited funds from individuals, corporations and unions for the types of biting attack ads that buffeted Gingrich in the run-up to his disappointing fourth-place finish in Tuesday’s Iowa caucuses. 
   
   Gingrich didn’t predict his current predicament a year ago, when he appeared in a video commemorating the Citizens United ruling’s one-year anniversary, saying the decision granted “the right of every citizen, whether you agree or disagree, to get up and be heard, to speak, to have space in politics.” 
   
   He also predicted in an op-ed that the decision would strengthen American democracy “by making it easier for middle-class candidates to compete against the wealthy and incumbents.” 
   
   But the former House speaker has repeatedly suggested recently that Romney colluded with an allied super PAC on anti-Gingrich ads, which would violate a provision that was reaffirmed by the courts that bars coordination between campaigns and outside groups. 
   
   Romney is “not telling the American people the truth” when he says he has nothing to do with the attacks from the pro-Romney super PAC, Gingrich charged Monday. “This is a man whose staff created the PAC, his millionaire friends fund the PAC, he pretends he has nothing to do with the PAC — it’s baloney,” Gingrich said. 
   
   The super PAC in question, Restore Our Future, spent more than $3 million on biting anti-Gingrich ads in Iowa. It’s run by former Romney associates Carl Forti, who was political director of Romney’s 2008 presidential campaign, and Charlie Spies, Romney’s 2008 legal counsel. 
   
   Restore Our Future has wasted no time pursuing Gingrich outside of Iowa, reporting Wednesday that it this week spent $265,000 in Florida on a media buy opposing Gingrich. Meanwhile, the super PAC spent more than $101,500 this week promoting Romney in South Carolina, documents filed Wednesday show.
target: – The underlying theme of the GOP race this year seems to be Citizens United, observes Law.com. The Supreme Court decision that led to the creation of super PACs funded by unlimited donations is getting its first real-world test, and the results are hard to miss. Most notably: The super PAC known as Restore Our Future decimated Newt Gingrich with negative ads on behalf of Mitt Romney. As Politico notes, Gingrich called the decision at the time a "great victory for free speech," and while he still supports it, he is also complaining about being "Romney-boated" by his rival's "millionaire friends." Also: Restrictions needed? The Huffington Post gives banner treatment ("We've Created a Monster") to the issue, with Sam Stein writing that some prominent Republicans think that restrictions on super PACs are in order. Among others, it quotes Tom Ridge, who thinks that donations to the groups should be disclosed almost immediately online. "Transparency now, it is the best antiseptic," says the Jon Huntsman ally. Full story here. Montana decision: At Slate, Dahlia Lithwick gives a figurative high-five to the Montana Supreme Court, which last week issued a "stunning" decision that the state could essentially ignore Citizens United and continue to restrict corporate election spending. The court "knows exactly what Justice Kennedy seems to have missed: That corruption is corruption regardless of its packaging, and that it rarely comes with a detailed disclosure label." Full piece here. Overblown issue? The National Journal rounds up conservative opinion and finds little "buyer's remorse" about the ruling. It quotes a GOP consultant who thinks the issue is being exaggerated: “Every cycle there is a new vehicle as the law changed. Campaigns have always run negative ads. The vehicle may be different, but the ads certainly weren’t.” Full story here.