Monday, June 25, 2012
A sharply divided Supreme Court today in American Tradition Partnership v. Bullock summarily reversed an earlier Montana Supreme Court ruling and held the Montana restriction on independent campaign expenditures unconstitutional in violation of the First Amendment speech clause. The ruling wasn't a huge surprise, as the Court previously stayed the Montana ruling pending its consideration of the case.
The ruling affirms the Court's commitment to Citizens United--the case holding that restrictions on independent electioneering expenditures violated the First Amendment--even in the midst of massive independent spending and the arrival of influential super-PACs this election cycle. The ruling means that the Court will allow no breathing room for regulation of independent electioneering expenditures--even when a state, like Montana, can show that it had a history of corruption through independent expenditures, and even when the restrictions don't seem all that onerous.
The ruling also means that the Court isn't in the mood to reconsider Citizens United--anytime soon, at all. If anything, this ruling only strengthens Citizens United, illustrating that there really is no breathing room for regulations on independent electioneering expenditures.
Recall that the Montana Supreme Court earlier upheld the state's restriction on independent electioneering expenditures, holding that Montana's history of political corruption through independent expenditures justified the restriction even under Citizens United. The court also held that Montana's restrictions weren't as onerous as the federal restrictions at issue in Citizens United.
In short, the Montana court held that the Montana restriction was distinguishable on the facts from Citizens United, and the court therefore could thread the Citizens United needle and enact its restriction.
The Supreme Court's ruling today means that there's no eye in the Citizens United needle--not even a small one.
Montana's law says that a "corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." The five-Justice majority, in a remarkably brief per curiam opinion, said that "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote in dissent that they'd reconsider Citizens United, and that even under Citizens United Montana showed that independent expenditures did lead to corruption and were therefore regulable. (These four did not vote to grant cert., however, because, as Justice Breyer wrote, "given the Court's per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition." Under Court rules, these four votes could have put the case before the Supreme Court, but they understood that the Court wouldn't reconsider Citizens United or its application here--and that Court consideration might only serve to strengthen Citizens United even more.)