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The Supreme Court, Citizens United II, and the November election [Updated]

Yesterday, the Supreme Court became a significant issue in the 2012 presidential election.  The Court did not take center stage by deciding the constitutional challenges we are watching most closely:  the cases involving the health care reform statute, Arizona’s S.B. 1070 immigration law, or the upcoming dispute on California’s Proposition 8 on gay marriage.  Instead, it signaled that the November election itself may coincide with an argument over whether to overrule the single decision that the Obama Administration believes it can run against:  Citizens United v. FEC.

The case now before the Court is a challenge to a Montana statute that bans corporate spending in state elections.  That law seems to be in the teeth of the Supreme Court’s decision in Citizens United, which held that uncoordinated corporate and union spending is protected by the First Amendment.  The Montana Supreme Court nonetheless upheld the statute on the ground that it “concerns Montana law, Montana elections and it arises from Montana history.”

The plaintiffs sought a stay of the Montana Supreme Court’s decision, which (as Lyle reported last night) the U.S. Supreme Court promptly granted.  The stay had the effect of reinstating a lower court ruling in Montana that the state statute is unconstitutional under Citizens United.  The stay will remain in place pending further action of the U.S. Supreme Court.

The next question is where the case goes from here.  First, there will be a petition for certiorari and a brief in opposition.  The Court will either grant cert. and have briefing and argument on the merits or summarily reverse the Montana Supreme Court.  For the reasons I discuss below, I think there is a zero-percent chance the Court will deny review.

The state has signaled its principal arguments in its unsuccessful brief opposing a stay.  Montana maintains that the state supreme court’s ruling does not conflict with Citizens United.  Thus, the state asserts that the law “imposes far different obligations, and therefore affects corporate speech in a far different manner, than the federal law at issue in Citizens United,” as well as that there was a “distinct history of corruption, and nature of political discourse, in Montana.”

The state likely will also argue in its forthcoming opposition that certiorari should be denied on the ground that the case is a poor vehicle in which to consider the question presented.  So, in opposing a stay, the state argued that “for a closely held corporation like [petitioner] Champion the Act operates as no more than a disclosure law of the sort this Court has long upheld.”

But now the state needs to rethink its argument.  Sometimes a court – or judges of a court – gives the litigants direction about what arguments are likely to succeed.  An obvious example in Supreme Court practice is that the Justices at the cert. stage sometimes specify the questions they will decide.  Another comes at oral argument, when a sympathetic Justice will sometimes try to direct an advocate into a line of argument that may be persuasive to a majority.

Even more rarely, the clues come earlier – before the case is even granted.  That is how I read the statement of Justice Ginsburg (joined by Justice Breyer) “respecting the grant of a stay” in the Montana case.  Here is what Justice Ginsburg wrote:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.”  Id., at ___ (slip op., at 42).  A petition for 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.  Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

In understanding the statement, start from the premise that it was not necessary.  Formally, it explains that the two Justices voted to grant the stay, and gives the reason why.  But without that statement, the fact that they voted to grant a stay would not be known, making an explanation unnecessary.

So it is worth thinking about what audience the Justices might have been writing for, and what other message it might have been intended (at least in part) to convey.  In that respect, note the context:  these two Justices dissented in Citizens United.  Any attempt to narrow or overrule Citizens United requires their votes.  No less important, both presumably want to see Citizens United overturned, so they have a significant incentive to see the case litigated in the way that is most likely to produce that result.  What they say is therefore very important.

What, then, does Justice Ginsburg’s statement tell us?  First, these two Justices at this stage recognize a square conflict between the Montana Supreme Court’s decision and Citizens United.  They “vote[d] to grant the stay” because the state supreme court was “bound to follow this Court’s decisions” – ipso facto, the state court’s ruling did not follow Citizens United.  If these two strong opponents of Citizens United see that conflict, then presumably the Citizens United majority does as well.  That means that the state’s argument that its law is distinguishable because it “imposes far different obligations” than did the statute in Citizens United has no traction for a potential majority as a ground for distinction, though perhaps it could be a basis on which Citizens United could be “modified.”

Second, look to what Justice Ginsburg does not say.  The statement indicates no sympathy for the claim that this case does not present an appropriate opportunity to consider the question presented.  So there is no interest in the state’s contention that, with respect to these petitioners, “the Act operates as no more than a disclosure law of the sort this Court has long upheld.”  As a result, the state has to work from the understanding that certiorari is certain to be granted, and the case is going to present the question whether Citizens United should be overruled or modified.

Third, and most important, the statement seemingly identifies the argument that Justices Ginsburg and Breyer think has the best chance:  “whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway” or instead should be “withdrawn or modified.”  That argument should be based on the practical evidence of “Montana’s experience, and experience elsewhere.”

In other words, the opinion strongly suggests that review is going to be granted and that if the state has a real chance at prevailing in the U.S. Supreme Court, it is not going to be at the margins by attempting to distinguish Citizens United (which is what the state supreme court attempted to do) or by debating how the law affects these particular petitioners.  Instead, it is going to be in a nearly frontal assault on the Court’s prior decisions, an assault that rests on very clear and specific data about how the Court’s campaign finance jurisprudence is supposedly distorting American elections.

The precedents that are in play obviously include Citizens United.  But the issue before the Court as framed by the Ginsburg statement reaches more broadly.  Citizens United recognized a First Amendment right for corporations and labor unions to participate through spending in electoral campaigns.  But that decision alone certainly is not responsible for what Justice Ginsburg perceives as the problem:  “the huge sums currently deployed to buy candidates’ allegiance.”  For example, Newt Gingrich’s patron Sheldon Adelson and Rick Santorum’s patron Foster Friess are individuals, not corporations; they are currently contributing through Super PACs protected by Citizens United, but they otherwise could spend on their own even without that decision.  Their First Amendment right to spend as much money as they want in the Republican primaries and the subsequent general election (without coordination with the candidates’ campaigns) rests on other campaign finance rulings, not on Citizens United.

To be sure, it is very easy to over-read a three-sentence opinion issued in a very short period of time on a motion for a stay.  Great care should be taken.  But as I read Justice Ginsburg’s statement, she is indicating that the only path to victory for the state here runs through Citizens United, and likely through the larger body of the Court’s campaign finance decisions.

In truth, the odds that Montana can prevail in this case on that or any other strategy are very, very low.  I don’t doubt that three members of the Court (the current Justices who dissented in Citizens United) will vote for the state, probably joined by Justice Kagan.  But finding a fifth vote among the members of the majority that decided Citizens United and previous campaign finance decisions strikes me as extremely unlikely.  The majority views this line of cases as reflecting a basic, foundational point about democracy:  that there is a right to participate in electoral campaigns to persuade voters.  The handwriting is on the wall that Montana’s law is going to be declared unconstitutional.

But that does not make the state’s effort wasted and the case an empty exercise.  This is one battle in a far wider war for both sides.  Because a constitutional amendment is unlikely to be adopted, the relationship between campaign finance law and the First Amendment is destined to be unsettled (in the sense that a shifting Supreme Court majority could reverse course) for at least the next century.  The dissenters likely view the case, at the least, as an opportunity to lay the foundation for what they hope will be the eventual overruling of the current body of campaign finance law at some point years down the road.

So the Montana case is destined to go down as Citizens United II.  Although I am confident Justice Ginsburg was not trying to signal or shape the case’s political implications, it is certainly worth those as well in that scenario.

I rarely believe that the Court plays any material role in elections.  This year, in particular, the country is understandably very focused on economic issues.  But as the President’s famous comments in his 2010 State of the Union address illustrate, the Obama Administration sees great political value in attacking the Supreme Court over Citizens United.  On the other major issues before the Court – health care reform, immigration, and gay marriage – independent, undecided voters are much more divided.  By contrast, the Administration perceives the Court’s campaign finance jurisprudence as extremely unpopular among the voters it is courting.

The potency of Citizens United as an electoral issue is amplified in a re-election campaign.  However unjust, the reality is that it is hard for incumbent presidents to point the finger at someone else for things that are going wrong.  Although the economic hole the Administration faced upon taking office was very deep, in the eyes of the public, President Obama owns the economy.  However much Republican members of the House blocked the President from implementing his agenda, the electorate still holds him responsible.

But the Supreme Court serves as a terrific foil for an incumbent.  Its constitutional decisions invalidate decisions that are frequently popular.  A modern, well-funded campaign has the ability to caricature the Justices’ decisions.  And the Court – which lacks a real mechanism to respond – is to some extent defenseless.

The run-up to the 2012 election in particular is likely to be a near-ideal setup for a campaign against the Court and Citizens United.  Voters in swing states are going to be subject to an unbelievable onslaught of electoral advertising, much of it from Super PACs and corporate and union interests.  Monied interests on both sides will not be able to control themselves in an orgy of spending, given the importance of the presidential election.  We will have never seen anything comparable.  It will be extremely tiring and frustrating for many voters.

In these circumstances, if – as seems likely – President Obama takes direct aim at the Supreme Court, no one with a significant voice is likely to take a stand defending the principle that democracy is better as a result of the Court’s decisions.  (An assault on Citizens United is only “near-ideal” because the President’s own endorsement of a Super PAC, and the extensive spending of pro-Democrat unions, will open the door to charges of hypocrisy, but consistency does not seem to be an inexorable command in electoral politics.)

This prospect raises the stakes dramatically for the otherwise-procedural decision by the Citizens United majority whether to summarily reverse the Montana decision or instead to grant plenary review.  Although some commentators have suggested that six votes are required, in fact the Court can summarily reverse a decision with only five votes (see here, here, and here); that is the answer to the question raised by Rick Hasen’s Election Law Blog.  I am told, however, that a different rule applies when four Justices are willing to vote for plenary review — i.e., the “four votes to grant” rule takes precedence over the “five votes can summarily reverse” rule.

Here, reversal is all but inevitable.  The question is whether Montana in effect gets its day in (the supreme) court.  Summary reversal is a strong, clear statement of the majority’s commitment to its prior ruling, and the impropriety of the Montana Supreme Court’s failure to follow the decision’s clear implications.

Nor is there anything impermissible about summarily disposing of such a case. Regularly, the Court summarily vacates and remands decisions upholding state laws for further consideration in light of the Court’s prior precedents.  The Court also sometimes summarily denies certiorari and declines to review lower court decisions holding state laws unconstitutional.  For example, if the Montana Supreme Court had reached the opposite result and held that the state’s law does violate the First Amendment under Citizens United, the odds are low that the U.S. Supreme Court would have granted a cert. petition filed by the state.

Because this seems likely to be an issue going forward, I digress to note that summary reversals of state courts are quite rare but certainly not unheard of.  For examples in the past two decades, see Kaupp v. Texas, (per curiam) (state court of appeals’ ruling that no arrest occurred at time of defendant-petitioner’s confession); Ohio v. Reiner,  (per curiam) (state supreme court’s interpretation of scope of privilege against self-incrimination); New Mexico v. Reed,  (per curiam) (state supreme court’s interpretation of state’s extradition obligations under federal law); Greene v. Georgia,   (per curiam) (state supreme court’s standard for reviewing dismissal of jurors); Trevino v. Texas,  (per curiam) (state supreme court’s failure to apply Batson v. Kentucky).

Although they are older, there are some roughly analogous cases to the Montana situation.  In Ashland Oil, Inc. v. Tax Commissioner of West Virginia,  (per curiam), the Court summarily reversed a state supreme court ruling that a tax could constitutionally be applied because a prior Supreme Court decision invalidating the tax did not apply retroactively.  In El Vocero de Puerto Rico v. Puerto Rico,  (per curiam), the Court summarily reversed a decision of the Supreme Court of Puerto Rico and held that a rule of civil procedure of the Puerto Rico courts closing preliminary hearings in criminal cases violates the First Amendment.  In Rose v. Arkansas State Police, (per curiam), the Court summarily reversed a state court of appeals’ holding that a state workers’ compensation scheme was not preempted by federal law and invalid under the Supremacy Clause.  In Connally v. Georgia,  (per curiam), the Court summarily reversed a state supreme court decision upholding a state statute providing a $5 fee to a magistrate every time he issued a requested search warrant, holding that the statute violates the Fourth and Fourteenth Amendments.

Procedurally, there are a couple of analogous cases.  In Turner v. Department of Employment Security,  (per curiam), the Court summarily reversed a state supreme court decision upholding a state law providing that women are ineligible for unemployment compensation from the period between twelve weeks before childbirth and six weeks after childbirth.  The Court reasoned that the statute created a presumption that “is virtually identical to the presumption found unconstitutional” in a recent prior decision.  The decision in Turner is also notable because, as in the Montana case, two Justices “would not summarily vacate the judgment,” but instead “would grant certiorari and set the case for full briefing and argument.”

Also analogous is Oklahoma Publishing Co. v. District Court,  (per curiam).  There, a state trial court issued an order barring the media from publishing the identity of a child murder defendant, notwithstanding that the identity was publicly known as a result of the fact that the proceedings were open.  The state supreme court upheld the order.  The U.S. Supreme Court initially granted a stay of the state court order pending the filing of a petition for certiorari, 429 U.S. 967 (1976) (per curiam), as in the current Montana case.  After the certiorari briefing was completed, the Court summarily reversed, holding that the order violated the First Amendment.

Also arguably relevant given the centrality of the recent decision in Citizens United to the Montana case is Powell v. Texas, (per curiam), in which the Court initially vacated and remanded the case for reconsideration in light of a pair of new decisions on the admission of evidence of a defendant’s future dangerousness, then summarily reversed the state court’s decision on remand for failure to follow those decisions.

On the other hand, summary reversal would be an extreme remedy.  As a matter of comity, the Court’s near-uniform practice when it reviews a case in this posture – viz., a merits decision holding that a statute does not violate the Constitution – has been to show the states and their courts the respect of plenary review.

I think that it will be very close question whether five members of the Citizens United majority all conclude that the Montana Supreme Court’s ruling is so outrageous that the decision should be summarily reversed.  (Note the wisdom (from the perspective of the dissenters) in the votes of Justices Ginsburg and Breyer on the stay application:  they point the Court towards plenary review to consider the merits of the state’s arguments for limiting or overruling Citizens United, rather than simply dissenting and treating the case as another five-to-four fait accompli that would be more likely to generate a summary reversal.)

This is the extremely unusual circumstance in which Montana as respondent desperately needs amicus support at the cert. stage.  The conventional wisdom is that cert.-stage, respondent-side amici are counterproductive because they just draw more attention to the case.  But this case is under the spotlight already.  What Montana needs is significant arguments from respected amici that the Court should grant plenary review.  Most important would be if the Solicitor General filed an unsolicited amicus brief expressing the Obama Administration’s position that Citizens United should be reconsidered.  Also significant would be amicus briefs from states seeking to defend their campaign finance laws.  But on the whole, the goal from Montana’s perspective should be to establish the foundation for a serious discussion of whether to reverse course in the Court’s campaign finance jurisprudence.  At the very least, they need the four more liberal members of the Court to vote to grant cert., so that the five members of the Citizens United majority do not simply summarily reverse.  And the plaintiffs should of course try to establish the opposite.

Note, however, the significant dilemma faced by proponents of campaign finance reform.  Campaign finance reform advocates may believe that a significant, high-profile fight over Citizens United might draw public attention and support to their cause.  But to what end?  Congress cannot overrule the Court’s campaign finance decisions, which rest on the Constitution.  The situation is thus very different from when abortion-rights advocates pressed the Planned Parenthood v. Casey case before the Supreme Court, expecting Roe to be overruled in the run-up to the 1992 election and hoping to spur favorable legislative results that could produce pro-choice laws.

One could say that there is no downside:  Citizens United is the law now, and will still be the law after the Supreme Court’s decision in the Montana case.  But it is not so simple.  If the Court seriously considers overruling its prior precedents – receiving briefing and argument on that question – and refuses, that reaffirmation of its prior decision is a significant event.  It gives the underlying decision greater stare decisis force, and the Court will later be less willing to reverse course.  So fighting the effort to overrule Citizens United now and losing will make it harder to win later.

If the Supreme Court does grant certiorari rather than summarily reversing, the timing of the case in the context of the presidential election could be absolutely extraordinary.  The Montana Supreme Court issued its decision on December 30, 2011.  So the cert. petition in the case is due on March 29, 2012.  Assuming the state does not take an extension of time to respond, the opposition will be due on April 30.  The Court would then act on the petition at its final May conference (May 31).  Certiorari would be granted then and the case would be briefed through the summer and fall, in the height of the campaign.

But there is more.  In 2011, cases granted from the final May conference were argued in the second week of the November sitting.  I think the same is likely to be true in 2012.  The second day of that week in that sitting this year is November 6 . . . election day.

Note: the Update to this post noted in the title was the addition of research on the Court’s summary reversals of state court decisions.

The post was corrected to remove a clause in a sentence that suggested that the right to engage in individual expenditures originated with the same majority as Citizens United.  It also now reflects reliable (but not concrete) information that four votes for plenary review takes precedence over five votes to summarily reverse.

Recommended Citation: Tom Goldstein, The Supreme Court, Citizens United II, and the November election [Updated], SCOTUSblog (Feb. 18, 2012, 8:49 PM),