Citizens United II?

Just as summer is replete with movie sequels, the Supreme Court is set to kick the season off by deciding whether or not to hear a case that could become Citizens United II.

On June 14, the U.S. Supreme Court will confer about whether American Tradition Partnership v. Bullock, a campaign finance case that the Montana Supreme Court decided last year, should move forward and be argued before the Roberts Court.

Unlike the 2002 McCain-Feingold Act restrictions at issue in Citizens United, this case is based on a 100-year-old Montana law that was passed in response to rampant political corruption in the state. The Montana Supreme Court held that the statute, which was enacted in 1912 and regulates corporate spending on state elections, is justified by and narrowly tailored to meet the state’s compelling interest “in preserving the integrity of its electoral process,” given the particular historical context in Montana.

As Rick Hasen wrote on this issue, the Supreme Court may:
  1. decline to hear the case
  2. grant cert to hear the case
  3. summarily reverse (overturn the state supreme court’s decision without briefs or oral arguments). 
The Court has been bombarded by friend-of-the-court briefs on behalf of both parties. To name but a few, in the petitioners’ corner — arguing for the Court to grant cert and ban Montana from limiting corporate political spending — are Citizens United (the advocacy group that spurred the infamous case), the U.S. Chamber of Commerce, and Senator Mitch McConnell (R-KY).

In the respondents’ corner — arguing to uphold the Montana statute — are several nonprofit organizations, state governments, law school professors, retired Montana Supreme Court judges, and Senators John McCain (R-AZ) and Sheldon Whitehouse (D-RI).

In the briefs supporting the Montana law, most amici argue in the first instance for the Court to deny review and leave the Montana Supreme Court’s decision intact. But, if the Court does not deny review, they argue for full briefing and oral arguments. A few groups, including former FEC officials and The Eleventh Amendment Movement (TEAM), are urging the Court simply to deny cert.

Hasen takes the latter position, arguing that if the Court fully reviews American Tradition Partnership, it could end up issuing an opinion on corporate election spending even more expansive than Citizens United. Thus, for those interested in maintaining the campaign finance restrictions that remain at both federal and state levels, the best course may be simply to lay low. Before the Roberts Court, no review may be better than some or full review.

Stay tuned! Citizens United II may be coming to a courthouse near you.