Court Refuses to Rehear Campaign Finance Arguments

In a narrow 5-4 decision today the United States Supreme Court strengthened its 2010 holding in Citizens United v. FEC by overturning a century-old Montana state law that bans campaign contributions from corporations due to their corrupting influence on the electoral process. 

By declining to hear arguments on American Tradition Partnership, Inc. v. Bullock and summarily reversing the decision of the Montana Supreme Court to uphold the state's Corrupt Practices Act, the Court signaled the futility of challenging its Citizens United ruling that the political speech of corporations is protected under the First Amendment.
Revealing a sharp divide on the Court, four justices signed a dissent (written by Justice Breyer) saying that the Court should have heard Montana’s case and used it as an opportunity to reconsider Citizens United, or at least to look at the applicability of that decision when applied to the particular circumstances of Montana law.

In February, when urging the Court to accept Montana’s petition for certiorari, Justice Ginsburg wrote:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal election Comm’n . . . make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption of the appearance of corruption.’ . . .  A petition of certiorari 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.

Justice Breyer echoed her words in the dissent he penned.

Stating his disagreement with the majority opinion in Citizens United, Breyer challenged the Court’s assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” and drew attention to the increasing inability to distinguish between “[m]any corporate independent expenditures . . . [and] direct contributions in their capacity to generate quid pro quo arrangements.”

Breyer and the other dissenters further stated that even were they to accept the holding in Citizens United, they believed the current and historical record and findings of political corruption by corporations in the state of Montana gave the state a compelling interest in maintaining its statute to protect the its electoral processes.
Today’s decision reveals that the Court continues to be polarized by its decision of over two years ago about who can participate in what ways in the electoral process. In addition, it almost certainly means the nationwide debate over Citizens United will remain unsettled.

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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.

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