Will Roberts Court Take Fresh Look at Citizens United?

      The organizers of the independent political committee Western Tradition Partnership, Inc., made no secret of the advantages to likeminded donors in Montana who might want to keep their contributions under wraps. “There’s no limit to how much you can give,” the organizers promised in a promotional mailing two years ago, despite Montana’s concededly “strict limits” on political donations.
      The mailing offered the opportunity not only for unlimited contributions but also for unlimited privacy. “We’re not required to report the name or the amount of any contribution that we receive,” the mailer continued. “So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”
      The justices of the Montana Supreme Court saw the incorporated Colorado-based group’s advertised availability as a conduit for anonymous political spending as a threat to the political marketplace not to mention the state’s campaign finance laws. So, in a 5-2 decision, the court ruled on Dec. 30 that Western Tradition Partnership, along with another corporate-organized group, the Montana Shooting Sports Association, and a small drywall company, Champion Painting, were subject to the state’s century-old ban on corporate spending in political campaigns.
      The Montana justices were fully aware of the U.S. Supreme Court’s Citizens United decision in 2010, some months before Western Tradition Partnership’s mailing. In a bitterly divided 5-4 decision, the Roberts Court’s conservative majority established a First Amendment right to unlimited political spending by corporations (and labor unions) in federal elections. But Montana’s law survived, the state court’s majority ruled, because the state’s history with corrupt corporate spending — think: Anaconda Copper — gave Montana a “compelling interest” in keeping corporations out of state campaigns.
      The case is now pending at the U.S. Supreme Court, which granted a stay on Feb. 17 as requested by the renamed American Tradition Partnership (ATP). Lawyers for ATP, led by the longtime foe of campaign finance regulation James Bopp, accused the Montana court of “a blatant disregard of its duty to follow” U.S. Supreme Court decisions.
      The stay in American Tradition Partnership, Inc. v. Bullock, 11A762, was issued on Feb. 17 without recorded dissent. But in a one-paragraph statement, two of the dissenting justices in Citizens United envisioned using the case as a vehicle for re-examining the earlier ruling.
      “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n [citation omitted] make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” Justice Ruth Bader Ginsburg wrote, quoting from the majority opinion. “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.”
      Even so, Ginsburg said she was voting to grant the stay “[b]ecause lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Justice Stephen G. Breyer joined the statement.
      A waggish Court watcher might say that critics hoping for a reversal of Citizens United with the ink on the ruling barely dry have two chances: slim and none. The Court decided the case after extensive briefing and extended arguments with full awareness of the clashing values. The ruling represented the culmination of a series of steps carefully orchestrated by Chief Justice John G. Roberts Jr. to widen the scope for political speech at the expense of campaign finance laws. And it represented a vindication for Justice Anthony M. Kennedy, the author of the majority opinion, who had dissented two decades earlier when the Court upheld bans on corporate spending in political races.
      Still, no less an observer than Linda Greenhouse, the now semi-retired New York Times Supreme Court watcher, acknowledged in the Times’s Opinionator blog that the Ginsburg-Breyer demarche gave her pause in her skepticism. Greenhouse credits Ginsburg and Breyer with inside-the-Court savvy and notes that their statement may at least “keep the public conversation going.”
      Greenhouse notes as a possible historical precedent, the FDR-era Court’s sudden about-face in the so-called Flag Salute Cases. Within only three years, the Court went in 1940 from 8-1 approval of laws requiring public school students to salute the flag to a 6-3 decision in 1943 striking down such laws as free-speech violations. The shift came about partly because of two new justices, but primarily because of the adverse reaction to the earlier ruling among opinion leaders and the public at large.
      The Flag Salute Cases, however, are the exception that proves the rule. None of the other reversals in the Court history — think: Brown v. Board of Education or Lawrence v. Texas — came about without a substantial passage of time or at least a critical change in personnel on a closely divided Court.
      Even so, the 2012 presidential campaign gives pause. The outsized role being played by independent Super PACs, fortified by corporate spending made possible by Citizens United, is evoking the same kind of negative reaction that the first of the Flag Salute Cases engendered. The Roberts majority has the votes to summarily reverse the Montana court’s decision without full briefing and argument. But justices open to the views of their colleagues — as Roberts promised in his confirmation he would be — ought to welcome the opportunity for a full reconsideration of the issues raised.