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Montana’s Citizens United Challenge; An Update.

Last week I posted a piece here detailing a decision by Montana’s state supreme court upholding their state’s long standing law prohibiting corporate corruption and monetary influence in Montana’s politics and governance. That legislation was put in place in 1912, 100 years ago. This past Friday SCOTUS stayed that ruling, but refused to reverse it without the hearing of argument as was asked for by the opponents of Montana’s court decision. The court will accept full briefing on whether or not to hear the case. That is probably the best that could have been hoped for to this point. It is a long shot that anything good will come of this, but it is our best hope to date of a chance at beginning the resurrection of our democracy.

Here  is why in a post by Richard L. Hasen at Slate :

Justice Ginsburg agreed that staying the Montana ruling was the right course, because lower courts are bound to apply Supreme Court precedent even if it is wrong; it is for the Supreme Court to fix its own wrong precedents. But then she added these words in a statement for herself and Justice Stephen Breyer with respect to the stay: “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 [to hear the case] 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.”

In this short statement, Justice Ginsburg quoted from the least defensible part of the Citizens United opinion. As I explained in October, according to the Supreme Court, the only government interests that can justify limits on campaign money against First Amendment challenge are the prevention of corruption or the appearance of corruption.  (This interest is what explains the constitutionality of limits on contributions to candidates.) In Citizens United, Justice Kennedy, writing for the court majority, resolved as matter of fiat what had appeared to be a factual question about independent spending and corruption: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” He further declared that “[t]he appearance of influence or access [coming from unlimited corporate spending] will not cause the electorate to lose faith in our democracy.”

Justice Kennedy presents the issue of corruption and the appearance of corruption as a matter of fact, and the Montana court took Justice Kennedy’s on his words and said, “Ok, let’s take a look at the facts” in Montana. There is a large history of corporate spending corrupting the political process here, so our state’s laws are justified.

Hat tip to SCOTUSBLOG for the heads up on the Slate article, and here are several further links they provided should you have an interest :

Coverage of the Court continued steadily throughout the holiday weekend, focusing on the Court’s stay of a decision by the Montana Supreme Court upholding that state’s century-old ban on corporate campaign spending. Lyle Denniston of this blog has coverage of the stay, as does Greg Stohr of Bloomberg, while Tom Goldstein, also of this blog, has an extended analysis of the case’s potential implications.  Other coverage comes from Robert Barnes of the Washington Post, Josh Gerstein of Politico, James Vicini of Reuters, Mark Sherman of the Associated Press, Mike Sacks of the Huffington Post, and Charles Johnson of the Billings Gazette. And at Slate, Rick Hasen focuses on Justice Ginsburg, arguing that she seems “poised to use the Montana case to expose the false premise at the heart of the Citizens United case.”

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Robert Alexander Dumas

Robert Alexander Dumas

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