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Can Montana's Supreme Court decision be used to overturn Citizens United?

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Overturning Citizens United seems like a stretch, but not so far a one that the New York Times didn't feature it just this week.

Background: You probably know about the U.S. Supreme Court's ruling in Citizens United — corps, using their free speech rights, can spend in an unlimited way on political campaigns. In explaining (defending) their ruling, Justice Kennedy wrote that corporate expenditures:

do not give rise to corruption or the appearance of corruption.
But recently the Montana Supreme Court ruled that Citizens United didn't apply in Montana, since Montana's law banning corp contributions to politics is based on Montana's actual experience with just that kind of corruption, in a very big way.

Slate's Dahlia Lithwick explains (my emphasis and paragraphing):
[B]y a 5-2 margin, Montana’s high court determined that the state law survived “strict scrutiny” because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United.

In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.”

Noting that, back in the last Gilded Age, Montana's wealthy "Copper Kings" bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.
Gauntlet thrown; reason given.

The U.S. Supreme Court was asked to overturn the Montana ruling, and decided instead to issue a stay pending review.

That's where it gets interesting. The whole thing turns on three sentences added by Justices Ginsberg and Breyer to the SCOTUS ruling that placed a hold on the Montana ruling (pdf; my emphasis):
Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay.

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. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.
Linda Greenhouse in the NY Times writes:
In their separate statement, Justices Ginsburg and Breyer seemed not to buy the “Montana is different” rationale, instead viewing the state court’s ruling, despite its protestations to the contrary, as simple defiance of Citizens United. “Lower courts are bound to follow this court’s decisions until they are withdrawn or modified,” the two justices observed.

Their point, rather, was that the Supreme Court itself should use this case as a vehicle to reconsider Citizens United.
"Montana is different" is the heart of the state court ruling. So this is an interesting ploy by Ginsberg and Breyer, whom Greenhouse calls "savvy players."

She admits that overturning Citizens United would be "a huge leap for the Citizens United majority.". The world of the Court overturning previous rulings normally includes changes to the Court's composition — but not always. Her article is worth reading for those instances alone.

We're keeping a close eye on this. If there's indeed a review of Citizens United, we'll have a chance to see if Justice Kennedy sticks to his wrong-headed guns regarding corruption. (I know, "wrong-headed guns" — so sue me...)


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