Will Montana's Anti-Citizens United Stance Blow Up in Its Face?


Last December the Montana Supreme Court issued a decision upholding the state's century-old ban on political spending by corporations. As I noted in a column last week, this ruling directly contradicts the U.S. Supreme Court's 2010 ruling in Citizens United v. F.E.C., which nullified a nearly identical federal restriction on political spending by corporations and unions. The Montana court didn't let that pesky First Amendment precedent get in its way, however, and the state justices went ahead and upheld the campaign finance law. The U.S. Supreme Court is now deciding whether to summarily reverse that ruling or hear an appeal in the case.

At first glance, this might all sound like good news to critics of the Citizens United ruling. After all, if the Supreme Court does agree to take up the case, campaign finance advocates would get a shot at convincing the Court to limit or possibly even overturn Citizens United. Shouldn't foes of Citizens United be happy about this turn of events?

At least one prominent supporter of campaign finance legislation thinks not. Writing at his Election Law Blog, UC Irvine law and political science professor Rick Hasen worries that if the Supreme Court does agree to hear an appeal in the Montana case, campaign finance reformers might not be so pleased with the outcome. He writes:

The betting here seems to be that this will allow for a full airing of the claims against how Citizens United has worked out so far, and the outside chance of peeling off Justice Kennedy from the majority.

What this calculation doesn't include is the possibility that the Court could actually make things worse if this goes to a full hearing and there is a majority opinion.  (And believe me, it could get even worse, such as having the Court express doubts about the constitutionality of contribution limits applied to corporations or in other ways).

According to its electronic docket, the Supreme Court is scheduled to consider the future of the case at a private conference of the justices on June 14. Montana may soon learn if its attempt to bypass Citizens United is going to blow up in its face.