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Last filing on campaign finance

Acting quickly and setting the stage for the Supreme Court to act next month, challengers of a Montana law limiting corporations’ spending to influence state elections mailed their reply brief to the Court on Friday.  Among other arguments, they urged the Court not to consider developments in campaign finance since the Court’s 2010 ruling that is centrally at issue: Citizens United v. Federal Election Commission.  Again, they urged the Court to act summarily, without formal briefing and oral argument.

Two of the Justices and several of the groups filing opposition to this appeal had said that review of the case would give the Court a chance, based on the heavy flow of money into this year’s federal campaigns, to reconsider the basic premise of the Citizens United ruling: that is, that corporations’ spending their own money does not cause corruption or its appearance in politics.

But lawyers for three Montana corporations argued in their new brief that this was a “diversion” from the central question of whether the Montana Supreme Court had disobeyed the Supreme Court’s Citizens United ruling by upholding a state law that is said to conflict directly with that decision.  Events since the state court ruling in December, the reply said, “are not part of the record of this case and played no role” in the state court decision.

Without mentioning that Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer, had made the same argument in February that some of the amici filings have now done, the reply argued: “These amici essentialy want this Court to host a trial, to allow creation of a new record, and to rely on new arguments not considered below or even asserted” by the state itself in its opposition brief.   It noted that the state had said there was no need for the Court to reconsider Citizens United, because there was no need for that ruling to be interpreted as broadly as the challengers do in their petition.

In addition, the reply discounted the arguments in the amici briefs that corruption is now apparent in campaign finance, especially in this year’s campaigns.  The new brief called these arguments “doomsday portrayals” that “are overblown.”

In repeating its earlier plea for the Court to overturn the Montana court decision summarily, the new brief cited the widespread controversy across the nation about the Citizens United decision — including calls for a constitutional amendment to overturn that decision, and planned Senate hearings on that question.  But the brief said this only serves to elevate the importance of this case as a vehicle for maintaining the result in Citizens United, which the brief said had resolved “a divisive controversy.”  The pressure against Citizens United, including pleas by amici to overturn it, adds to the pressure now surrounding the issue and gives new importance to deciding the Montana case swiftly, the brief said.

The Court has not yet scheduled this case for Conference, but the earliest that it could go before the Justices appears to be the June 14 Conference.  The prompt filing of the reply brief — just one week after the opposition briefs had come in – enhances the prospect that the case will be considered by the Justices, and perhaps acted upon, before the current Term ends, in late June.   If the Court grants review, rather than summarily overturning the state court ruling, that almost certainly would push the case over into the new Term, starting October 1, but the case probably would not go to an argument before December.   A summary decision could come this Term, but, if it drew dissents (as would be likely), that might delay it.


Recommended Citation: Lyle Denniston, Last filing on campaign finance, SCOTUSblog (May. 25, 2012, 3:52 PM),