By Stefan Passantino
The United States Supreme Court has recently announced that it might be revisiting its uber-controversial opinion Citizens United v. FEC. The ruling at issue was in the form of a little-noticed order entered by the Court staying a Montana Supreme Court opinion declining to enforce Citizens United. Nothing controversial there. What makes the opinion intriguing, as noted by recent news reports, is the fact that Justices Ginsburg and Breyer went out of their way to note that:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.
Can you feel the thrill running up Chris Matthews’ leg at the mere thought of such a ruling? Is this a sign that the Court has had a change of heart and is about to rethink its controversial holding that corporations have the right under the first amendment to freely advocate for and against federal candidates?
Spoiler Alert: Not likely.
At issue here is a Montana Supreme Court opinion in which that court concluded that the sky is too big in Montana for some pesky infringement of its laws by the United States Constitution: “Citizens United does not compel a conclusion that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional.” (Western Tradition Partnership, Inc. v. Attorney General of Montana, 2011 MT 328, p. 28).
Of course the US Supreme Court stayed application of that opinion. To do anything else would invite an undermining of the primacy of the federal constitution.
You gotta’ give Montana credit for chutzpa, if not for originality. South Carolina tried this gig first in 1832 with its Ordinance of Nullification but that didn’t work out too well.
A good example of what to expect in the future from the Supreme Court in this case can be found in Bluman v. FEC; a fun case in which a few individuals sought to challenge the prohibition against foreign nationals from making direct contributions or independent expenditures in domestic elections on first amendment grounds by arguing that Citizens United didn’t mean what it said.
The U.S. Supreme Court dispatched that argument in four words. I’m setting the “over-under” for the Court’s reversal and remand consistent with its ruling in Citizens United in this case at twenty-five words. Any takers?