Hot Docs: Corporations ask SCOTUS to prevent “Citizens United, Part 2″

May 3, 2012

Montana - no Citizens UnitedThis past January, I wrote about the Montana Supreme Court’s decision in Western Tradition Partnership v. Bullock.

The ruling is noteworthy because it effectively declined to follow the U.S. Supreme Court’s 2010 ruling Citizens United v. FEC, choosing instead to uphold Montana’s laws limiting political campaign contributions by corporations.

The Montana Supreme Court’s decision has gained quite a bit of notoriety since January, and, as I predicted in my earlier post, the U.S. Supreme Court has gotten involved.

On February 17, 2012, the SCOTUS issued a stay of the Montana Supreme Court’s ruling pending a petition for a writ of certiorari, and on March 26, 2012, the plaintiffs (i.e. the corporations challenging Montana’s law) filed their petition for a writ of certiorari.

It’s very likely that the petition will be granted – otherwise, the Court wouldn’t have taken the extraordinary step of issuing the stay of the Montana Supreme Court’s decision.

But that’s not the only extraordinary thing that went on here.

Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, added a concurring opinion to the stay issued by SCOTUS.

That concurrence stated that “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

The concurrence went on to say, essentially, that this will be a good opportunity for the Court to reevaluate (i.e. overturn) Citizens United.

The U.S. Chamber of Commerce would disagree, at least according to its amicus curiae brief submitted in support of the corporate plaintiffs on April 27, 2012.

Hot Doc: Am. Tradition P’ship v. Bullock*

Source: Thomson Reuters News & Insight – National Litigation

The brief calls on the Supreme Court to grant the plaintiff’s petition for cert and to summarily – that is, without hearing arguments – reverse the ruling of Montana’s high court.

The brief argues that the Montana Supreme Court’s ruling conflicts with Citizens United – which, as I stated in my previous post, is correct.

The brief goes on to argue, however, that “nothing that has occurred since Citizens United provides a basis for reconsidering the decision,” specifically taking exception with Ginsburg’s concurrence for suggesting otherwise.

It’s essentially the same argument as other amicus briefs submitted by supporters of the Citizens United ruling (currently, such briefs have been submitted by Senator Mitch McConnell and the actual Citizens United organization that was party to the ruling of the same name).

All argue for summary reversal.

The political makeup of the Supreme Court hasn’t changed since the 2010 decision, so why is it so important to the corporate plaintiffs and their amici that SCOTUS not reexamine Citizens United?

Because they have everything to lose.

It’s very possible that one or more of Citizens United’s five Justice majority will be swayed by Justices Breyer’s and Ginsburg’s arguments that unlimited corporate political spending does, after all, give rise to corruption or the appearance of corruption.

Or some may be swayed by the massive popular backlash against the ruling.

If even one Justice from the Citizens United majority switches sides, the Court may end up overturning it altogether.

The more likely scenario, however, is that Citizens United will be upheld, but narrowed significantly in scope.

The final possible outcome – that Citizens United will be upheld in its entirety – is the least likely for reasons I’ll get into later, which is why supporters of the ruling don’t want SCOTUS to look at it again.

Unfortunately for American* Tradition Partnership and its allies, the Supreme Court will most likely hear arguments in this case.

It only takes four of the nine Justices to grant certiorari, and the four Justices in the Court’s liberal bloc will most likely step up to grant it, and they’ll do so without summarily reversing the Montana Supreme Court.

So the Supreme Court will have a Citizens United, part 2, only a few years after the original decision.

And it’s the Supreme Court’s making this decision again that helps explain why the second ruling probably won’t simply uphold the first.

The level of public hostility generated by the first decision may have taken some of the Justices off guard.

It shouldn’t come as any surprise this time around, though, and it may well play into the final votes of the Justices.

If it does, and Citizens United is limited or overturned, the historical significance of the ruling will be greater than it simply being one case that reversed another.

American Tradition Partnership v. Bullock will be remembered as the case that made the Judicial Branch democratic, even for a single ruling.

*Western Tradition Partnership has changed its name to “American Tradition Partnership,” so the case name also changes.