Supreme Court

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.

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  1. They should print out the first amendment, then highlight the clause which says specifically “Congress shall make no law . . .” and leave it at that.

    It isn’t that fucking hard.

    1. Hey, buddy, you interpreting law without a license?

      1. Is there room for interpretation in “Congress shall make no law?” Seem pretty fucking clear to me.

        /defensive me

    2. Robert’s opinion: “English, muthafucka, do you speak it?!”

      1. What?!

        *riddles Vermicelli with bullets*

        1. “It was one in a million, doc…one in a million…”

  2. “Citizens United” is mandated precedence throughout the U.S. Montana is in the U.S.

  3. The government, proponents argue, has a strong interest in preventing that sort of public disillusionment?strong enough to justify restrictions on political speech.

    You know, based on these ridiculous arguments you’d get the impression that Left genuinely believes that prior to Citizens United and some earlier cases there was no such thing as corruption in government and that Americans would love their Big Government schemes if only government would educate them to do so.

    1. I don’t remember the part of the First Amendment where it says “unless they have a strong interest”…

      1. The first amendment now includes the words “compelling state interest.”

  4. EJ Doinne wrote about CU yesterday. He said that … actually, never mind.

    1. “I support free speech, except…”
      Was it something like that?

      1. actually, he seems to think that this isn’t related speech.

        “Those who claim that this is all about free speech need to explain how speech is free when one side can buy the microphone and can set the terms of debate, especially in contests below the presidential level.”…..story.html

        1. So he conflates “Free,” as in “not restricted by the force of government,” with “does not cost anything?”

        2. According to his logic, speech isn’t free so long as E.J. Dionne has daily access to the Post’s opinion page and I don’t.

        3. Those who claim that this is all about free speech need to explain how speech is free when one side anyone can buy the microphone and can set the terms of debate, especially in contests below the presidential level say anything they want, using any means they can afford.”

          1. The problem is that corporations were fabricated by governments. This provides a legal tool to evade paying debts because only part of individuals wealth is incorporated. The fact that some corporations are publicly owned makes accountability worse. Free speech is a tangential issue.

            1. Tangential? IE – unimportant?

              Yeah… that pesky thing called free speech is just a side issue, unimportant, compared to that of allowing free people to enter into contracts with each other…

              Oh… wait a second. Isn’t that part of the first amendment too? Freedom of association?

              Or just another pesky side point for you?

  5. First off, I agree that the entirety of campaign finance law restricting contributions or expenditures is a violation of the 1A.

    That said, there is a fourth option, and one I expect the Court to take.

    The Montana law is a prohibition on direct contributions to candidates or their campaigns, as well as independent expenditures, by corporations. It says:

    A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.

    The case itself dealt with independent expenditures.

    Citizens United dealt with independent expenditures that are not directly to candidates or their campaigns. I’m pretty sure it did not strike down bans or restrictions on campaign contributions, but am far too lazy to confirm this.

    SCOTUS could take this case to clarify/confirm that CU applies only to independent expenditures, and not to campaign contributions. In effect, they would be ruling that the Montana statute is Constitutionl as applied to campaign contributions, but unconstitutional as applied to independent expenditures. Maybe this would be a restatement of something they already said in CU (see, above, re lazy me).

    1. I don’t think a law restricting direct contributions to politicians violates the first amendment at all.

      CU did not have anything to do with direct contributions to politicians and candidates.

    2. RCDean, you are advocating that SCOTUS complicate case law so that more scum-bag lawyers must be paid for their pleadings.

  6. Boy! They really, really hate the decision rendered in Citizen’s Untied, don’t they?

    If only they hated ObamneyCare so much…

    1. It is pretty ridiculous to see liberals suddenly discover the Tenth Amendment and states’ rights when it suits their beliefs.

  7. Good. I hope it DOES double down.

  8. And anyone talking about “appearance of corruption” and using that to restrict speech has some serious balls, or no eyes, or no brain. Can they not see the rampant corruption going on with lobbyists and revolving doors, etc.? Can’t stamp that shit out. No. We have to go after TV ads. Morons.

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