Will the Supreme Court take another crack at its ‘Citizens United’ ruling?
Justices are scheduled Thursday behind closed doors to discuss Citizens United v. Federal Election Commission, the landmark 2010 decision holding that corporations can make unlimited independent expenditures using general treasury funds to support or oppose candidates.
Why would the justices revisit a case so soon after ruling on it? Because a lower court – the Montana Supreme Court – issued a ruling in 2011 that appears to contradict Citizens United.
The Montana court upheld a ban on corporate spending in Montana state elections, ruling that “unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history.”
The Supreme Court agreed in February to block temporarily, or “stay,” the Montana decision from going into effect until it decides whether to take up the case. Now, parties from both sides have issued written briefs in the case, and the Supreme Court must decide how to deal with it.
Critics of the Montana decision charge that the state’s Supreme Court showed “disrespect for the Constitution.” Lawyer James Bopp Jr. has filed a motion with the Supreme Court urging the justices to reverse the lower court decision with no additional briefs or arguments. That’s called a “summary reversal.”
“This case involves a failure to respect precedent,” Bopp, the Indiana Republican Party National Committeeman, writes. “A state court must not be allowed to force this Court into yet another round of briefing and oral argument on a recently decided issue by refusing to follow controlling precedent.”
But Steve Bullock, Montana’s attorney general, has filed a brief asking the court to agree to hear the Montana case with briefs and oral arguments. “Even on the broadest reading of Citizens United,” he writes in court papers, “this case presents an opportunity for the Court to clarify its applications.”
And Bullock is not the only one who hopes the court will agree to grant a full hearing and perhaps a second look at Citizens United.
Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer (both dissenters in Citizens United) agreed in February that the court should temporarily block the Montana decision from going into effect. The “stay” was necessary “because lower courts are bound to follow this court’s decisions,” Ginsburg said.
But she also quoted a key passage of Citizens United and wrote, “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.’”
She said she hoped the court would agree to hear the case and decide whether “in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
The court could issue its decision as early as Monday.