The biggest legal challenge yet to the controversial campaign finance Citizens United decision — which loosened regulation on corporate spending in elections — has come to the Supreme Court.
A relatively obscure case in Montana, American Tradition Partnership v. Bullock, would seek to make Citizens United void on the state-level, thus inflicting the first blow in the effort to repeal the decision.
The Supreme Court is expected to make a decision on Bullock before the end of their term.
At issue is whether Montana is bound by the original decision of Citizens United — that any ban on corporate independent political expenditures (unlimited corporate spending, so to speak, also known as the “corporations are people” issue) is a violation of the First Amendment, when the ban applies to state, rather than federal, elections. The 2010 Citizens United decision helped create the modern Super PACs that are now fueling the 2012 presidential elections.
Montana has a century-old law, the Corrupt Practices Act, which prohibits corporations from making expenditures in campaign activities (in effect, anti-Citizens United legislation). This law was brought about in 1906 because national copper mining companies were bribing elected officials and becoming directly involved with government functions. Ironically, this is the nightmare scenario that many critics of Citizens United point to — unchecked business interests hijacking the democratic process. The Corporate Practices Act was a voter-adopted referendum that fought back against corporate interests and worked to end the corruption that unlimited funding caused in Montana’s government.
The corruption in Montana is an excellent example of unlimited funds can have on government.
It was thought that the Supreme Court would strike down this legislation, which was a late addition to the Court docket. The case was submitted for review, but wasn’t fully argued.
But on Monday, the Court surprised most analysts by delaying an order in the , their controversial 2010 ruling that allows for virtually unlimited corporate spending in state elections.
The Court was expected by many to issue an immediate decision of “summary reversal” in the case American Tradition Partnership v. Bullock that would uphold Citizens United and strike down a 2011 Montana court ruling that enforced that state’s anti-corruption election finance laws in seeming opposition to the federal mandate.
The Court still has three options: 1) a summary reversal, 2) accepting the case for a full hearing later this year, or 3) refusing jurisdiction to make any decision about the case at all, in which event Montana would win immediately and their state laws would stand and Citizens United would be effectively reversed.
PolicyMic will be following the announcement LIVE, and will be providing update analysis as announcements are made. (Bookmark and refresh this page for LIVE updates)
Monday: Citizens United has now been made stronger.
Monday: NO OBAMACARE RULING TODAY
Monday, 10:23 am: From Kogan: Basically the "papers please" is thrown back to the lower courts for further determination. Issues of racial profiling were not before the Court.
For our readers who are not lawyers, "preempted" means "trumped," in essence.
Monday, 10:19 am: Breaking: Most of the key provisions in Arizona SB 1070 invalidated.
Most of the key provisions of SB 1070 (3 of 4) are invalidated. One provision is held not to be proved preempted; it must be construed.
Not all of SB 1070 is shot down, though. From Mark Kogan: The "papers please" portion is NOT pre-empted. We have to wait for the opinion to see what that means.
Monday, 10:15 a.m. From SCOTUSBlog: "The dissenters (the four more liberal Justices) explain that they just dissent rather than voting to grant review because there is no prospect the majority would reconsider Citizens United."
Monday, 10:12 a.m. From Mark Kogan: Montana was overturned because it violated the First Amendment under the same reasoning that the federal restriction did. Court said that the arguments in the Montana case don't differ in any meaningful way from the Citizens United arguments, so the Montana law was struck down on the same grounds.
Monday, 10:09 a.m. From PolicyMic Legal Expert Mark Kogan: Short opinion, short dissent. 5-4, Montana Supreme Court overruled, Citizens United is applied against the states (no limits on independent political expenditures in state elections). Citizens United was only applied to federal elections, now applies to states. Breyer was the dissent.
Monday, 10:05 a.m. WOW. Montana case summarily reversed, 5-4. Citizens United has just been extended to the states.
Monday, 10 a.m. SCOTUS Decision Imminent: Here's a primer From PolicyMic Legal Expert Mark Kogan: 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 Unitedonly 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 wasgranted 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 withCitizens 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.
Monday, 9:10 am: What to Watch For Today: PolicyMic Legal Expert Mark Kogan drops some knowledge on what to expect aside from Obamacare and Arizona: The other big thing the look for is the list of orders, specifically the list of petitions for certiorari that will be granted and heard by the Court. The Montana case is expected to be announced this morning, bringing Citizens United back into the national spotlight.
Following orders, opinions will be announced one at a time in reverse order of seniority, with the Chief Justice always last. Meaning if we have an opinion from Justice Kennedy or Chief Justice Roberts (the likely authors if the mandate is upheld), we will be hearing from them last.
Don't be surprised to see the Court announce another opinion day (probably Thursday) and push health care back to there.
Rahm Emanuel has a reputation for blunt, merciless appraisals of the state of political affairs. In a recent interview with London’sThe Guardian about the Supreme Court’sCitizen United decision, the Chicago mayor said, “I think the decision on Super PACs will go down as probably in the top five single worst decisions of any Supreme Court in American history.”
Keep in mind, this is the same judicial body that ruled a black man was more property than person (Dred Scott vs. Sanford, 1857); the same body that “softened” its view four decades later to permit segregation under the guise of “separate but equal” (Plessy vs. Ferguson, 1896); the same body that upheld forced sterilization of the mentally handicapped (Buck vs. Bell, 1927); and the same body that approved the indefinite internment of over 100,000 Japanese Americans during World War II (Korematsu vs. United States, 1944). Surely, then, Emanuel’s comments represent frustration more so than fact.
Or do they?
Certainly, in terms of gross disregard for humanity and blatant promotion of racism, cases like those described above achieve uniquely embarrassing levels of depravity. However, the decision inCitizens United vs. United States extends (relatively) localized injustices perpetrated in previous poor decisions to virtually the entire American public.
With its ruling, the Supreme Court has authorized unlimited corporate, union, and interest group spending – all aimed at influencing elections – through so-called “independent expenditures” and “super PACs.” It has opened the floodgates for an unprecedented deluge of private spending to shape our government.
The impact has been staggering, and overwhelmingly contrary to the egalitarian ideals of democracy on which this nation was founded. Campaigns spend egregious sums of money wooing voters, but without limits on the amount of money that may be spent, the focus shifts to the donors. Soon, our elected officials less resemble public servants than they do indentured servants: terms are spent working off debts and favors incurred over the course of the campaign instead of advocating for the people who actually did the voting. Our government’s promises to “promote the general welfare” and “secure the blessings of liberty” play second fiddle to courtship of beneficiaries for the next election season. Essentially, this disproportionate political influence of wealthy individuals and groups leads to the implicit disenfranchisement of the vast majority of Americans, a crime against democracy if there ever was one. Emanuel may have a point after all.
The Supreme Court rationalized its decision as preservation of the First Amendment right to free speech. Even if we accept the dubious equation of money to political expression, the Supreme Court has limited free speech in a myriad of ways over its history. Exceptions to the First Amendment range from threats to libel, but the general rule of thumb is that speech should be uncensored unless it harms, or could potentially harm, others. The firestorm of PAC spending since the Citizens United decision has obfuscated truth in politics for voters, indebted candidates to wealthy donors, and made addressing real political issues ancillary to campaign operation. The harm is evident, and we are all the victims.
Last week, Forbes reported that Restore Our Future – the primary super PAC supporting Mitt Romney’s bid for the presidency – had secured mega-donations from no fewer than 32 billionaires. That number likely pales in comparison to the number of special interest groups running “independent expenditures” for Romney, and for President Obama as well. Sickeningly, the record shows that all that the money makes a difference.
Government of, by, and for the people has been hijacked, all because the Supreme Court called hijacking “free speech.”
I can only imagine what Emanuel must be saying off the record.
SCOTUS Term Snapshot:
Cases argued 67 Cases decided 61 Summary reversals 9 Merits cases granted 76
Saturday: Don't Bet Against Obamacare? Think Again. As of Friday, bettors at intrade.com, a site which allows users to speculate on the outcome of world events, were projecting a 75% chance that the Supreme Court overturns the individual mandate by the end of the year.
How Will Markets React? If Obamacare is overturned, expect markets to react positively. Generally speaking, stocks should benefit if parts or all of the Act are overturned. CNBC's Jim Cramer has previously stated that, "if Obamacare goes down, you can raise almost every company's estimates for 2013 -- if it is approved I am slashing my numbers." Given different potential outcomes, however, there will be winners and losers in the sector. Traders who do their homework should be able to find some opportunities next week.
Thursday RULED: Union must give fee increase notice... (Wisconsin/ Scott Walker-oriented): “The majority thus decides, for the very first time, that the First Amendment does require an opt-in system in some circumstances [for union dues]: the levying of a special assessment or dues increase.”