How the Supreme Court Could "Double Down on Citizens United"


Writing in The Wall Street Journal, Institute for Justice attorney Paul Sherman looks at the issues at stake in American Tradition Partnership Inc. v. Bullock, the case arising out of the Montana Supreme Court's attempt to ignore the U.S. Supreme Court's Citizens United and uphold the state's ban on political spending by corporations. As Sherman explains, the Supreme Court is now deciding what to do about the Montana court's actions:

First, the justices might summarily reverse the Montana ruling without granting it the privilege of a full hearing. Second, the court's four liberal justices might force the issue, granting review and hoping that after a full hearing a member of the Citizens United majority might switch sides.

But there is also a third possibility: The Supreme Court could double down on Citizens United and reject, once and for all, the flawed justification underlying much of America's failed experiment with campaign-finance law—the so-called appearance-of-corruption standard.

As Sherman sees it, the Court should go for option number three:

The argument behind the appearance-of-corruption standard and the expansive laws it has spawned is that a deregulated system of campaign finance would lead to public cynicism and distrust of our democratic process. The government, proponents argue, has a strong interest in preventing that sort of public disillusionment—strong enough to justify restrictions on political speech.

This argument ignores that a healthy distrust of government is vital to ensuring that government stays within its constitutionally limited role. Campaign-finance proponents want to grant government the power to restrict political activity for the purpose of managing its own PR. The result of doing so is that government still has the same amount of power to abuse, but fewer people will notice or be concerned. That's a great way to promote big government but a lousy way to promote trustworthy government.

Read the whole thing here. I discussed the Montana ruling in a recent column.