Many observers have blamed the court’s January 2010 decision in Citizens United v. Federal Election Commission for supposedly turning on the corporate money-in-politics spigot. But even some members of the court are questioning anew whether that was a mistake.
One of the most significant sequels to the Citizens United decision reached the court recently, from the state of Montana, and last week the justices indicated that they probably will take it on for a decision. Already, two justices have suggested that they will be pressing their colleagues to rethink that controversial ruling. Whether they can gather enough votes to make that happen, though, is not likely to be clear for several weeks.
The 2010 decision declared that corporations have a constitutional right to spend freely from their internal funds to try to influence national elections. Although that ruling also said that labor unions have the same right, union money has not matched the volume coming from corporations, and corporate funds are underwriting much of the activity of the super PACs that have developed as a result of the Citizens United decision.
Some of those unhappy over this money flood have conceded that they can’t do much about it unless the Constitution is amended, and that looks like a very long-shot idea. The ruling was based directly on the First Amendment, and thus it can’t be changed just by new legislation, even if a new bill could pass despite legislative gridlock.
Out West, in the independent spirit of the prairies, however, the Montana Supreme Court decided it was not bound to follow the Citizens United precedent. It upheld the state’s century-old “corrupt practices” law that grew out of the corruption of state politics by the copper barons -- a law that imposed a flat ban on corporations’ use of their internal funds in state politics. Most political and legal observers -- including a dissenting justice of the Montana court -- opined that the ruling could not survive an appeal to the Supreme Court by the three Montana corporations that lost the case in Helena.
Those corporations’ lawyers, in fact, asked the Supreme Court to overturn the Montana ruling without even holding a hearing or getting full legal briefs on it. At a minimum, though, those lawyers asked the justices to put the case on hold until they could appeal formally.
Last Friday, at the end of the afternoon, the Supreme Court responded. It put the Montana decision on hold until the corporations’ coming appeal is resolved, one way or the other. The justices chose, however, not to overturn the ruling -- yet.
While that action was not a surprise, there was a quite unusual twist to the court’s announcement. Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer, filed a separate statement. They agreed to the delay of the Montana ruling, but they used their statement to complain tartly about “the huge sums currently deployed to buy candidates’ allegiance.”
They argued that "Montana’s experience, and experience elsewhere" since the Citizens United decision "make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.'" The quoted words are, in fact, a key reason that the court majority gave in 2010 for establishing corporations’ right to spend their money freely in politics.
Justices Ginsburg and Breyer added that, when the Montana corporations’ appeal comes in, it will give the court a chance to consider whether “Citizens United should continue to hold sway.”
Of course, Ginsburg and Breyer were among the dissenters when the Citizens United case was decided by a 5-4 vote. It will take five votes for the Supreme Court to finally dispose of the Montana case, voting up or down on the state court decision.
It remains possible that the court’s five-justice majority in Citizens United will hold fast, and might even overturn the Montana ruling swiftly when it reaches the docket. But a rousing new feud among the justices on the issue seems in the offing. There appears to be little chance that the court would simply deny review, leaving the Montana decision intact.
Last week’s order does mean that corporations in Montana are now free to spend as they like in that state’s campaigns this year -- at least for the next several weeks.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.