Election 2012: Montana Supreme Court loses, Citizens United wins

July 11, 2012

Ballot LawWith all of the anticipation over the Supreme Court’s possible release of its decision in the health care case, and the actual release of Arizona v. U.S., another decision’s release went relatively unnoticed.

That case, released on June 25 (the same day as Arizona), is American Tradition Partnership, Inc. v. Bullock.

Most of you are probably more familiar with it as being referred to as “the case where the Montana Supreme Court rejected Citizens United.

From the day the Montana high court issued its ruling in the case, American Tradition Partnership has travelled a unique path, leading up to and including the Supreme Court’s decision last month.

Let me start in Montana, though.

I went into much more detail in this post from early January, but essentially, at the state level, it went like this:

Western Tradition Partnership, an organization whose sole purpose is to act as a conduit for those who wish to make anonymous political donations, challenged Montana’s Corrupt Practices Act.

The Act barred corporations from making contributions or expenditures “in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”

The district court ruled the law unconstitutional, but the Montana Supreme Court reversed.

This ruling was based on the finding that that independent expenditures by corporations did, in fact, lead to corruption or the appearance of corruption in Montana, and that the state had a compelling interest in preventing this.

The Corrupt Practices Act, the Montana high court ruled, was narrowly tailored to further that interest.

In other words, the Montana Supreme Court ruled that the law met the strict scrutiny burden imposed by the Supreme Court in Citizens United.

The ruling gained national attention, with many hopeful that the case could lead to the U.S. Supreme Court’s revisiting – and possibly revising – its Citizens United ruling.

Naturally, Western Tradition Partnership (which, during the interim, had changed its name to American Tradition Partnership) did end up petitioning for certiorari with the U.S. Supreme Court on March 26, 2012.

This initial filing was followed by a flood of amicus curiae briefs from various other organizations and individuals (I did a post about some of them here).

At this point, the Supreme Court had three options:

  1. Deny certiorari;
  2. Grant certiorari and hear arguments as it does in the vast majority of other cases the Court agrees to hear; or
  3. Grant certiorari and issue a summary reversal.

If the Court chose option #1, many other states would undoubtedly follow Montana’s example and uphold existing restrictions (or pass new ones) on corporate campaign expenditures.

With option #2, the Court would hear written and oral arguments for the case and issue a full opinion deciding the case next term.

The problem with option #2 is that oral arguments and a full opinion create a lot of publicity – something the Court majority of Citizens United would probably prefer to avoid should they rule against Montana, considering the hostile public reception the 2010 ruling received.

The Court is then left with option #3, which it took, thus overturning the Montana Supreme Court’s decision and invalidating the Corrupt Practices Act.

Summary reversals are a rare occurrence at the Supreme Court, but this one is particularly odd.

The decision was issued per curiam – that is, jointly and anonymously.

Stephen BreyerHowever, the fact that four Justices dissented – Breyer, Ginsburg, Sotomayor, and Kagan – defeats any anonymity that a per curiam decision may have given.

Since it takes five Justices to do a summary reversal, and we know which four Justices dissented, we know that the remaining Justices (the original Citizens United majority – Roberts, Kennedy, Scalia, Thomas, and Alito) voted in American Tradition Partnership to reaffirm Citizens United.

The last oddity about this decision is that Justice Breyer’s dissent was longer than the majority opinion.

The fact that a dissent was written in this case is significant in itself, but the dissent is also significant because it demonstrates a fervent opposition to the holding of Citizens United.

In fact, Breyer goes as far as to say that he does not “accept Citizens United” (“[m]oreover, even if I were to accept Citizens United…”).

What does this all mean?

The four dissenting Justices are still upset about the holding of Citizens United, and, should they regain a majority on the Court, they would have no reservations about overturning the 2010 case.

So much for a respect for precedent.

However, Justice Breyer would surely retort, “Is Citizens United even precedent deserving of respect?”