Summary ruling on campaign money urged (UPDATED)
on May 1, 2012 at 4:01 pm
UPDATED 5:55 p.m. Additional amicus briefs have been filed, by the GOP leader in the Senate, Sen. Mitch McConnell of Kentucky, and by the U.S. Chamber of Commerce, both joining in the call for summary reversal of the state court decision. A brief filed by former officials of the American Civil Liberties Union supports review in the regular way. The blog will post those briefs on the case page as they become available.
Citizens United, the conservative advocacy group that won the 2010 ruling freeing corporations and labor unions to spend freely to influence elections for President and Congress, has urged the Supreme Court to protect that decision by overturning — without briefing or hearing — a Montana Supreme Court decision that went the opposite way. Accusing the state court of “constitutional mischief,” Citizens United’s lawyers said the Court should “reaffirm its position as the final arbiter of the Constitution’s meaning” by acting summarily. Its new brief, filed Friday, is here.
The sequel case is American Tradition Partnership, et al., v. Bullock (docket 11-1179). There is time for the Court to act on the new case, one way or another, before the current Term ends, probably in late June, although the state of Montana is not scheduled to file its reply until May 18. If the state does file then, the Justices could consider the case at one of their Conferences later in May or in June. It would take four votes to grant review, and five to rule summarily.
Besides the amicus brief filed by Citizens United, another such brief — urging the Court to accept the case for regular review at its next Term — was filed last week by Free Speech for People and other advocacy organizations, arguing that the facts on which the Court based its 2010 ruling in Citizens United v. Federal Election Commission are now “in serious doubt” in the wake of “massive” spending in federal campaigns “by corporations and wealthy elites.” That brief is here.
The Montana state court ruling at issue is on hold, after being postponed by the Court on February 17 pending the filing of the petition by challengers to a Montana law that curbs corporate spending in state elections.
Two members of the Court — Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer — commented at the time of the stay order that the postponement and a later grant of review would allow the Court a chance to reconsider its Citizens United ruling in the wake of what those Justices called the spending of “huge sums” of money lately “to buy candidates’ allegiance.”
But Citizens United, in its new brief, argued that the question of recent spending, and its impact on the 2010 ruling, is not at issue in the new case appealed by two small Montana corporations. The state Supreme Court did not uphold its state law based upon the flow of corporate money since the 2010 decision, the brief said, but rather based its decision “on Montana’s supposedly unique history, geography, politics, and economy.”
The brief added: “The Montana Supreme Court’s state-specific analysis makes this case an exceedingly poor vehicle to reexamine the broader constitutional questions settled in Citizens United.”
On the merits of what the Justices should do now, Citizens United’s counsel argued that they should make clear that their ruling was binding in Montana, too. It contended that “state courts — like federal courts — have an unwavering obligation to uphold the Constitution of the United States and follow this Court’s decisions until they are withdrawn or modified….They are not freed from that constitutional obligation where the decision of this Court is controversial or unpopular, where it was rendered by a divided Court, or where state officials disagree with the decisions as a matter of policy.”
What Montana’s highest court has done, the brief concluded, “is a transparent attempt to circumvent the application of this Court’s precedent to a state statute that is materially indistinguishable from the federal prohibition on corporate independent expenditures struck down by this Court in Citizens United. Such constitutional mischief should proceed no further.”
The new Free Speech for People brief focused specifically on the rise of spending by outside groups and individuals since the Citizens United decision, and contended that that undercut the premises of the decision. “In view of the increasingly dominant role of corporate and private independent expenditures in our electoral politics,” the brief said, “this Court should grant certiorari and reexamine whether its long-standing precedent permitting regulations designed to prevent the use of wealth from drowning out other voices provides an additional basis for upholding restrictions on independent expenditures.”
That filing also made a broader argument, urging the Justices to use the case as a basis for ruling that corporations are not entitled to the protections of the First Amendment free-speech clause or other provisions in the Bill of Rights.