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Money, politics and Citizens United’s fate


If the Supreme Court had looked at the highly significant Montana campaign finance case a month ago, it would have seen a far simpler constitutional controversy — one that boiled down to the question of whether a state court must obey what the Nation’s highest court says the law is; the answer, of course, is obvious.   The Court might have asked itself then: what is the quickest and simplest way to make this right?   What a difference a month — and a raft of legal talent — might make.

A stack of new legal filings last Friday amounted to an argument that the Court would not be true to itself or to its nobler traditions if it acts swiftly out of pique at the Montana Supreme Court — in effect, a not-so-subtle suggestion that the Court would put itself very much more on the defensive for having acted rashly.   If that argument works, it could set the stage for a thorough new airing of money in politics by the Justices — next year, in a supposedly calmer, non-campaign atmosphere.

Many new questions have now been raised directly before the Court about the controversial decision that lies behind this controversy — the 2010 decision in Citizens United v. Federal Election Commission.  But no issue seems more important right now than whether the Court will dump the supposedly contrary Montana court’s ruling with little more than a passing glimpse — in other words, whether it will summarily reverse the state tribunal without briefing or oral argument, an unceremonious technique that is usually reserved for lower courts that stray far off of the judicial path on frolics of their own.

A frolic of just that sort is what the Montana Supreme Court has been accused of doing, in the filings three corporations and their supporters in the case made in March and April.  They are challenging the state court’s split decision late last year upholding a state law that restricts the political spending options of corporations operating under Montana law.  That ruling, its challengers contended, resulted from a blatant refusal by the state court majority to obey the Supreme Court’s Citizens United decision that permits unlimited spending by corporations (and labor unions) acting independently of candidates.   Citizens United itself, the Washington, D.C.-based advocacy corporation that had won the 2010 decision, said in its brief that the state court had engaged in “constitutional mischief.”  The Justices’ only proper response, those filings asserted, was summary reversal.

The challengers had made much the same argument in February, when they persuaded the Supreme Court — unanimously, it appeared — to temporarily block the state court decision, pending an appeal to the Justices.  (Earlier posts on this blog about this dispute, and links to all of the filings before the Court in the case up to now, are available at this page.  The case is American Tradition Partnership, Inc., et al., v. Bullock, et al., docket 11-1179.)

The responses are now in, from the state of Montana and from an array of amicus briefs that range, in their arguments, from an outright plea for the Justices to reconsider the core of the Citizens United decision to a claim that Montana’s Eleventh Amendment legal immunity as a state forbids the lawsuit against it by the three corporations.   Many of the new briefs told the Court that it should simply deny review of the corporations’ petition, to let the issues raised by the Citizens United decision “percolate” further in lower courts.

But, in tone and content, most of the new filings seem to imply that the lawyers think an outright denial of review is unlikely, so most of their energy is spent on attempts to persuade the Justices to give the case the full treatment of a regular case: a round of written briefs, again attracting a wide array of amici, followed by a hearing before the nine Justices.

It now appears that the Justices will take their first look at the case sometime in mid-June; it has not yet been formally scheduled for a private Conference of the Justices, but the earliest Conference where it might be on the table would be June 14.  If review is granted, the case might not be heard until December at the earliest, after the election, and not decided until next year.  If summary reversal is to be its fate, though, that could come before the Justices finish the current Term late next month.  Because of the Justices’ February order in the case, the state court ruling is on hold for the time being.

One of the principal arguments that the just-filed response briefs made against the Citizens United decision is that the 5-4 majority was just wrong in one of the ruling’s most important declarations: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

Of course, if there is no prospect of corruption in politics, then prior Supreme Court rulings bar federal or state governments from regulating the flow of money in election campaigns, on the theory that money is a form of political speech under the First Amendment.

While the corporations challenging the Montana campaign finance law contended that the Supreme Court was making a legal declaration in that statement, the briefs on the other side urged the Justices, in any new review of the controversy, to treat that as simply a conclusion of fact that is subject to revision if there is evidence to show that it was incorrect.  And the new briefs make a studied effort to show that, as a matter of fact, the Court’s statement was wrong: the actual experience in the two years since the decision, they argued, proves the error.

For example, a brief filed by advocacy organizations — many identified with campaign finance reform efforts — told the Court: “Experience since Citizens United has taught that — with the law’s ready accommodation of close relationships and coordinated fundraising activities between candidates and supposedly ‘independent’ spenders — independent expenditures do give rise to corruption and the appearance of corruption….More than $120 million in anonymous-source funds was spent to influence the 2010 elections, with far greater spending of anonymous funds projected for 2012.”

Much of the claimed evidence of massive spending is attributed, in the new briefs, to the so-called “Super PACs” that have been created since the Citizens United decision, and often involve individuals closely allied with actual federal candidates — including both President Obama and the presumed Republican presidential nominee, Mitt Romney.  A brief filed by former members of the Federal Election Commission, joined by former state and local election officials, summed up: “In the 2012 primaries, Super PACs and non-profits have raised and spent money on a massive scale, yet the amounts collected and spent to date are only a fraction of those expected in this year’s elections.”

The briefs, predictably, pick up on remarks made by Justices Ruth Bader Ginsburg and Stephen G. Breyer in February, when they urged the Court to take a new look at Citizens United, commenting on the problems they saw arising from recent heavy spending on federal campaigns, and their doubts about the validity of the conclusion that independent expenditures have no capacity to corrupt politicians.

Republican Sen. John McCain of Arizona, joined by Democratic Sen. Sheldon Whitehouse of Rhode Island, filed a brief that commented: “The news confirms, daily, that existing campaign finance rules purporting to provide for ‘independence’ and ‘disclosure’ in fact provide neither.  Regulatory filings show that much of the funding for independent expenditures comes from shell companies, pass-through entities, and non-profit organizations that conceal the true source of the individuals and companies supporting them. These non-disclosed funding sources were not what the Court had in mind when it issued its ruling in Citizens United.”

In the Citizens United decision, while the Court freed independent spending on federal campaigns, the majority also refused to strike down requirements that the sources of such spending could be required to be disclosed.   The briefs supporting the Montana ruling make much of that.

Several of the briefs — including the one filed by Montana state officials in defense of their state court’s ruling and the state law at issue — sought to make a strong “states’ rights” argument to the Court, especially in pleading with the Court not to summarily reverse the state court.   The main constitutional argument is that, while Citizens United involved a First Amendment issue over a law enacted at the federal level, the new case is about states’ power and whether the Fourteenth Amendment restricts their controls on campaign finance as much as the First Amendment does for federal law.  Twenty-two states along with the District of Columbia line up behind this argument.

A part of that argument is that corporations are creatures of state law, and states thus have broader authority to regulate what they do with corporate money, especially when corporations might be writing checks to support political candidates or causes that the stockholders would not necessarily support.   A further part of the argument is that states are smaller entities, and so it is easier for “outside” campaign dollars to actually have a controlling influence on state elections.   This latter point is also made in the context of rising spending on state judicial elections.

A group of Montana organizations took the Fourteenth Amendment argument a good bit further, in a quite imaginative way.  Their brief noted that, for the First Amendment principle of free speech to work against state election laws, it must be treated as “incorporated” into the Fourteenth Amendment’s due process clause, but Justice Clarence Thomas does not support the “incorporation” theory.  Subtracting Justice Thomas from the Citizens United majority, that brief went on, would leave that opinion’s approach with only four votes in support when viewed “in the Fourteenth Amendment context.”   By that argument, Citizens United would be only a 4-4 decision if a state law were the one at issue, and a 4-4 split in the Montana case would leave the state court’s decision intact.

Part of the new briefs’ assault on the Citizens United decision itself is an argument that the Justices could not have intended the consequences that have followed from that ruling, with lower courts giving it a broader reading than the decision itself would justify.   Some of the briefs noted that, while Citizens United dealt only with spending in campaigns, lower courts have interpreted it to mean that governments may not control the flow of contributions into independent organizations, like Super PACs.  Moreover, some have interpreted the decision to relax the long-standing notion that political spending has to remain truly independent of candidates, if it is going to enjoy the broadest constitutional protection.

Another attack on Citizens United — made by former officials of the American Civil Liberties Union, in a brief not supporting either side in this case — is aimed at the decision’s assumptions that all corporations were entitled to the same First Amendment protection when they spend money in politics.   The decision in that case should have been understood as confined to grass-roots politically active organizations like the group bearing the name Citizens United, and should not be understood as applying to large corporations that have many stockholders, according to this filing.

That brief argued: “Massive legal and factual differences exist between and among ideological grassroots non-profits, single-shareholder businesses, and multi-shareholder business corporations that call for separate analyses of the constitutional rights of each corporate category.”

The corporations challenging the Montana law and the state court ruling will now have a chance to reply to the response briefs, and then the Court will schedule the case for an initial look at a future Conference.





Recommended Citation: Lyle Denniston, Money, politics and Citizens United’s fate, SCOTUSblog (May. 23, 2012, 3:14 PM),