...late last year the Montana Supreme Court thumbed its nose at the Supreme Court’s Citizens United decision. In Citizens United, Justice Anthony Kennedy, writing for a five-justice majority, held that the federal law barring corporations from spending their funds on election ads violated the corporations’ First Amendment rights. The Montana court nonetheless upheld a state ban on corporate campaign spending, finding that Montana’s history of corruption justified the ban.
Everyone expects the Supreme Court to reverse the Montana case, likely on a 5-4 vote. But the big question is how the court will do so. Opponents of the Montana law went for broke before the Supreme Court: In addition to asking the court to put the Montana ruling on hold pending the usual process for seeking Supreme Court review, they asked the court to reverse the Montana court without even hearing any argument. Last Friday, the court agreed to stay the Montana ruling, but the justices did not short-circuit the usual process. The court will accept full briefing on whether or not to hear the case, and then it will decide what to do. Court watcher Tom Goldstein believes a full hearing is likely.
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...
With last week’s statement, Justice Ginsburg has signaled that she or one of the other justices opposing the Citizens United case will use the Montana case to expose the fallacy of the Citizens United argument.
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