With two Justices suggesting that the Supreme Court should now reconsider its controversial campaign finance ruling of two years ago, the Court on Friday put on hold a Montana Supreme Court decision which had upheld a law against heavy spending by corporations on politics. The postponement will last until the Court takes final action on a coming appeal by challengers to the law. The stay order is here. The Court, however, has not yet granted review of the case.
Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer, also supported the delay, but said that 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 [v. Federal Election Commission] should continue to hold sway.” It is unclear at this point whether any of the other Justices see the Montana case that way, and it would take five votes for the Court to modify or pare down the scope of the Citizen United decision. Five votes were required to impose the stay, but that is no indication how the Justices would vote when a final decision was at hand.
Since the Court did not yet accept the case for full review, it appeared unlikely that the case could develop in time for a final ruling during the current Court Term — unless the Court could decide in coming weeks to summarily overturn the state court ruling. In the meantime, however, Friday’s order means, as a practical matter, that corporations in Montana at least temporarily could spend unlimited amounts of money from their internal treasuries for a few months during this year’s state political campaigns. That is because, for now, the state cannot enforce its Corrupt Practices Act ban on corporations’ spending of internal funds. The state Supreme Court had upheld that law on December 30.
The five Justices who joined in the broad decision in Citizens United, giving corporations and labor unions a constitutional right to spend unlimited amounts from their internal funds to try to influence political campaigns, remain on the Court. They were Justice Anthony M. Kennedy, the opinion’s author, and Chief Justice John G. Roberts, Jr., along with Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. In that ruling, the Court declared that the mere fact that corporations and unions spend heavily on campaigns does not amount to the kind of political corruption that could be curbed with campaign finance laws. The decision has apparently been the primary cause for a huge outpouring of corporate cash during campaigns since that ruling came down.
Justices Ginsburg and Breyer were among the dissenters in 2010, along with Justice Sonia Sotomayor. Since then, Justice Elena Kagan has replaced the other dissenter at the time, now-retired Justice John Paul Stevens.
The Montana law, which originated with a voter-approved measure in 1912, had been challenged by three Montana corporations, relying mainly on the Supreme Court’s January 2010 decision in Citizens United. The Montana Supreme Court, finding significant differences between the scope of the federal law at issue in Citizens United and Montana’s state ban on corporation spending, upheld the state restrictions.
Taking the case on to the Supreme Court, the Montana corporations asked the Justices for two forms of action: first, to issue a stay of the state court ruling until the Court could act on a coming petition for review, and, second, as an alternative, to treat the stay application (11A762) as the petition itself, and summarily overturn the state court decision — that is, to nullify it without further briefing or oral argument.
The Court on Friday afternoon did only the first: it stayed the Montana ruling “pending the timely filing and disposition of a petition for a writ of certiorari.” The challengers to the state ruling have 90 days — that is, until about the end of March — to file such a petition. It would take another six weeks or so for the case to be ready for the Court to decide whether to grant review or to deny it, or whether, at that point, to summarily overturn the lower court ruling. Conceivably, a summary reversal could come during this Term, but, if that does not occur, the case very likely would go over to the next Term, starting October 1. In that event, a final ruling would not come down until after the November elections.
The stay order said the postponement would stay in place if review were granted, but would “terminate automatically” if review is denied. That is the standard approach the Court takes when it issues such a stay order.
The Montana case has loomed as a potentially major test of Citizens United, on the theory that the 2010 decision severely curbs not only Congress’s power to rein in heavy corporate spending on politics, but also does so for state legislatures (or citizen-initiated ballot measures). The Montana corporations in their challenge treated the two sources of legislative power as indistinguishable, arguing that the Montana decision and Citizens United could not co-exist, so the Montana ruling could not stand. That is why they suggested the alternative of a summary overturning.
Justices Ginsburg and Breyer seemed to indicate, in their comments Friday, that they, too, did regard Citizens United as a controlling decision even for state election laws. They wrote that “lower courts are bound to follow this Court’s decisions until they are withdrawn or modified,” and that was why they agreed with the Court order to stay the Montana ruling. They clearly do anticipate, or perhaps at least hope, that the Court would now move on to take a new look at Citizens United.
Their statement attacked the central foundation of the Citizens United ruling: its declaration that independent spending by corporations does not “give rise to corruption or the appearance of corruption.” They cited Montana’s experience — decades of heavy corporate spending that seemingly did corrupt the state’s politics — as well as “experience elsewhere” since the Citizens United decision. Those developments, their statement said, “make it exceedingly difficult to maintain” the key rationale for the Citizen United decision.
Although Ginsburg and Breyer did note that they had voted to grant the stay, the Court’s order did not reveal how any of the other seven Justices voted. At least three others would have had to join in supporting the stay. That presumably included Justice Sotomayor, another dissenter two years ago. But even if that trio favored a stay, they still had to pick up two votes — perhaps Justice Kagan, and at least one of the Justices who was in the majority in Citizens United. A member of that majority perhaps felt that a state should at least get a full chance to defend one of its laws before it was struck down.
Montana officials, responding to the corporations’ challenge in the Supreme Court, opposed a stay of the state court ruling, but spent much of their argument in opposition to a summary decision by the Justices. On that, the state prevailed — at least for now.