UPDATED Wednesday 7:05 pm. The petition in this case has now been docketed as 11-1179.
Arguing that the heavy flow of money into this year’s presidential election campaign is not the result of a controversial Supreme Court ruling, two small Montana corporations told the Supreme Court Tuesday that there is no need now for the Justices to reconsider that decision two years ago in Citizens United v. Federal Election Commission. In fact, the new petition (found here, with an appendix) asked the Justices to summarily overturn a Montana Supreme Court decision that the corporations argued directly disobeyed the Supreme Court. The case is American Tradition Partnership, et al., v. Bullock, et al. (no docket number assigned yet).
Two Justices had argued last month that the Montana case would give the Court a chance to reconsider Citizens United, because of the “huge sums” of money now being spent “to buy candidates’ allegiance.” Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer, nonetheless conceded in their statement that lower courts were still bound by the 2010 ruling freeing corporations and labor unions to spend as much as they wished on campaigns if they did so independently of candidates. The Court put on hold the state court ruling upholding a Montana law similar to the federal law nullified in Citizens United, at least until an appeal is decided.
The new petition contended that much of the money now being paid to influence this year’s campaigns is not coming from corporations, but from individuals, and they have been free since 1976 to spend as they wished. The actual experience in politics since Citizens United was decided, the two corporations contended, “cannot provide a justification to overturn” the 2010 decision. In fact, the Court in Citizens United “expected more political spending because it overturned a ban on political spending by thousands upon thousands oif corporations and labor unions in federal elections.”
Most of the big money being spent this year by so-called “Super PACs,” the petition said, is from individuals and not corporations, “so it cannot be tied to Citizens United.” In addition, even though the volume of money now flowing may be large, the filing argued, that could not cause corruption of the political system, since the Supreme Court had made clear that the only kind of corporation that would justify limits on campaign finance is “quid-pro-quo” dealings — that is, giving money in direct response to favors by a political officeholder.’
The petition asked: “Is this Court going to limit the right of speakers to engage in core political speech because they spend huge sums in doing so?”
Going over the arguments that the Montana Supreme Court had upheld a state law curbing corporate spending in state elections, the petition rejected each of them. The petition also noted that the dissenting judges in the state Supreme Court had protested that all of the rationales used by the majority to strike down the state law had already been considered and rejected by the Supreme Court in its Citizens United ruling.
Rather than giving the new appeal the full treatment, the petition suggested that the Court should decide it without further written briefs and without any public hearings. The Montana decision so clearly defies Supreme Court precedent that it should not be allowed to stand. There will be nothing left of the Citizens United decision, the petition contended, if state courts are allowed to find loopholes that allow them to uphold the same kind of campaign finance limit that the Justices nullified.
The petition is expected to draw a significant number of briefs by political advocacy organizations, many who oppose the Citizens United ruling, in order to lay before the Justices what is actually happening in campaign finance now.
The state of Montana has 30 days to file a response to the petition, unless that time is extended. If the Court does not decide the case by a summary ruling, it presumably would put it over until the new Term starting in October, and thus a final ruling would not come until after this year’s election season is over. In the meantime, because the state court ruling has been stayed by the Justices, corporations in Montana can spend as they wish in state campaigns this year.