A Chance to Overrule Citizens United?

Friday, the Supreme Court granted a request to stay the December Montana Supreme Court's decision upholding that state's prohibition on corporate spending on independent expenditures to support or defeat a candidate. The 5-2 majority had argued that their case was distinguishable from Citizens United because of Montana's particular history of political corruption by business interests. In contrast, one of the dissenting opinions found that it was not distinguishable, but proceeded to issue a withering criticism of what has become the Supreme Court's most notorious case of the Roberts era.

In staying the decision until the Supreme Court decides whether to hear a formal appeal of it, the Court signaled its strong disagreement with the Montana Supreme Court majority. Justices Breyer and Ginsburg issued a separate statement making clear they don't buy the Montana Supreme Court's assertion that their circumstances are distinguishable from Citizens United (from which they had dissented). However, they also said that the appeal will give the U.S. Supreme Court a chance to review the assumptions behind Citizens United, given the past 2 years' experience:

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." 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. Because lower courts are bound to follow this Court's decisions until they are withdrawn or modified, however, I vote to grant the stay.

Montana will clearly lose if it argues that its circumstances are distinguishable from those around Citizens United. If it wants to succeed, it will have to make a frontal attack on the factual premise upon which that decision rested: that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption."

The Court may issue an order without an opinion, simply reversing the Montana decision under Citizens United. But let us hope they instead order oral arguments in the case. We can only hope that at least one of the five Justices in the Citizens United majority looks with horror upon the genie they have released and will realize their assumptions were naïve, at best. The future of our democracy may depend on it.

PFAW Foundation