UPDATE: On Monday, the Supreme Court has ruled 5-4 to summarily reverse the case of American Traditions Partnership, Inc. v. Bullock, a ruling which in essence extends the 2009 Citizens United ruling against the states. The per curium opinion held that the arguments in American Traditions did not significantly differ from the arguments decided in Citizens United. Therefore, the majority reasoned, the Montana law must be struck down to conform with the First Amendment protections articuled in Citizens United.
Justice Breyer, writing for the dissent, thought that the facts in the Montana case merited a new look, stating that "were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case." Justice Breyer was joined by Justices Ginsburg, Sotomayor, and Kagan.
While the Supreme Court ruling on the Affordable Care Act is sure to grab headlines as the 2012 presidential campaign begins its home stretch, the Court is gearing up to hear another contentious issue early next year.
The Supreme Court is expected to grant review in the case of American Traditions Partnership, Inc. v. Bullock, a case legal experts have dubbed Citizens United 2.0. Citizens United v. FEC was a 2009 case which held that provisions of federal election law prohibiting independent organizations from running political advertisements within 60 days of a general election (or 30 days of a primary) violated the the First Amendment.
American Traditions comes to the Supreme Court by way of the Montana Supreme Court, where a law prohibiting independent corporate political expenditures was upheld as constitutional, in seeming defiance of the Supreme Court’s holding in Citizens United.
The Montana Supreme Court split with the Supreme Court on the grounds that Citizens United only applied to federal election law. American Traditions, the Montana court argued, was distinct because it “concerns Montana law, Montana elections and it arises from Montana history.”
The plaintiffs in the case appealed for an immediate stay to the Supreme Court. The stay was granted in February until the Court had a chance to determine whether it would hear the case.
Last week, the first petition urging that the Court review the case arrived in what many see as a formality, with most legal commentators absolutely sure that the Court will take up the case early next year. The liberal wing of the Court seems eager at reworking the outcome of Citizens United. Justice Ginsburg, one of the dissenters in Citizens United, noted that 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.”
So with the case surely heading for Supreme Court review, the question is whether the Montana Supreme Court’s decision will be struck down under Citizens United or turn Citizens United on its head.
States have historically been allowed to be more protective of constitutional rights than the federal government. For example, a state could enact laws making speech more protected under state law than federal law. However, states are certainly not allowed to be less protective barring truly distinct circumstances.
Generally, the rule regarding limitations on political speech requires the state to put forth a compelling state interest and a regulation that is narrowly-tailored to advance that state interest. The heart of the debate centers on whether or not the prevention of corruption (or the appearance of corruption) is a significant enough state interest to limit individuals’ and corporations’ ability to speak.
This issue of preventing corruption was central to the liberal Justices original disagreement with Citizens United.
The author of the dissent, now retired Justice Paul Stevens, hammered the conservative majority for rejecting “the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”
The Montana Supreme Court seemed to take Justice Steven’s comments to heart, noting that the “distinct history of corruption, and nature of political discourse, in Montana” required a different analysis than the one for federal elections presented in Citizens United.
Montana’s lawyers further asserted that Montana is not bound by Citizens United because the Montana law at issue “imposes far different obligations, and therefore affects corporate speech in a far different manner, than the federal law at issue in Citizens United.”
James Bopp, Jr., lead counsel for the corporations challenging the law, responded that "if Montana can ban core political speech because of Montana's unique characteristics, free speech will be seriously harmed."
The odds of Montana being able to side-step Citizens United are low. The likelihood of finding five votes to overturn Citizens United so soon after its writing appears to be even lower. Like many legal issues before it, protection of political speech by corporations is expected to be expanded to state law just as it was to federal law, likely along the same 5-4 conservative-liberal split as before.
The lasting effect of a ruling that expands Citizens United may be the galvanizing effect needed for opponents to lobby legislators to write laws that would reverse the Supreme Court’s holdings. Constitutional amendments or laws with legislative findings necessary to show that unlimited spending by corporations does lead to the kind of corruption concerns necessary to restrict certain kinds of speech would be powerful steps towards reversing the legacy of Citizens United.
However, barring a change of heart by Justice Kennedy, opponents of Citizens United should prepare for a very uphill battle when the Court issues its opinion in American Traditions.