Late Friday afternoon the Supreme Court granted a stay of the Montana Supreme Court’s order in American Tradition Partnership v. Bullock. That’s the decision in which the Montana Supreme Court adopted the rather bizarre argument by Montana officials that they and their fellow politicians were so uniquely corrupt, and their constituents so uniquely incapable of voting corrupt politicians out of office, that Citizens United v. FEC didn’t apply in Montana.
The grant of the stay isn’t surprising, since the Montana Court’s decision was pure judicial lawlessness. What’s more interesting, while we wait for the inevitable reversal, is the reaction from the “reform” lobby. We start at the top, with Justices Breyer and Ginsburg, who offered a “special statement.” The Justices wrote, in its entirety,
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 Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.
Of course, Montana has no experience since the Court’s decision in Citizens United indicating any such thing. Indeed, the whole of the Montana Attorney General’s briefs in that case, and of the Montana Court’s opinion, was devoted to things allegedly occurring decades before Citizens United was decided. But even if we read the “since Citizens United” part of the statement to apply only to other states (“elsewhere”), Ginsburg and Breyer have nothing to support it. There is no post-Citizens United evidence that suggests that the decision has caused an increase in government corruption, or even its appearance. Justice Ginsburg, who wrote the statement, is just making it up. Or, as one reformer likes to say (wrongly) in criticizing the Citizens United majority: “Facts? We don’t need no stinkin’ facts.”
Worse is their prejudgment of the case. Ginsburg and Breyer show an open disdain for anyone trying to influence an election for their preferred candidate: they call it “buy[ing] candidates allegiance.” Obviously they’re not interested whatever appears in the briefs and the record about corruption- they’ve made a decision.
Meanwhile, Rick Hasen continues to accuse the Court majority of “hypocrisy.” What gets Professor Hasen worked up is that the Supreme Court majority said in CU that independent political spending doesn’t cause “corruption.” The Court says that this as a matter of Constitutional law, but Professor Hasen, using a different definition of “corruption” than the Court, is convinced that spending does cause “corruption.” Thus, goes the logic, the Court must be hypocritical. Similarly, Professor Hasen continues to insist that Blumen v. FEC, in which the Court summarily affirmed a lower court decision upholding the ban on foreign contributions, is inconsistent with Citizens United. What is irritating is that Professor Hasen seems unable to identify any reason why Blumen and CU are not inconsistent. One may not always agree with a court’s reasoning – I know I don’t – but at some point a clear analysis requires some effort to understand how the court reached the decision it did, and we just find that missing in Professor Hasen’s commentary on the impact of Blumen.
None of the horrible predictions made about Citizens United have come true. Campaigns are not more negative than in those heady days of McCain-Feingold, when we had Swift Boat Vets for Truth, whom, everyone knows, is the most evil, negative group ever to take to the airwaves; or back when the NAACP ran ads suggesting George W. Bush was to blame for racists dragging a black man to his death behind a pickup. It is not bad that there is more competition in House races, or that Super PACs have enabled Newt Gingrich and Rick Santorum to prolong their campaigns, allowing millions of Americans to have their views heard in the process? Government is not more “corrupt” than in those pre-Citizens United days, when big donors to the Obama campaign got big loans for Solyndra, and Duke Cunningham and William Jefferson were in Congress.
Citizens United and SpeechNow.org v. FEC have worked well. Remember, the government’s position in CU was that it had the authority to ban books and movies about candidates, if, like virtually all books and movies, they were produced, distributed, or otherwise financed by corporations, including citizen lobbying groups. We can all be thankful that the Supreme Court majority, and not Justices Ginsburg and Breyer, or the Montana Supreme Court, carried the day.
