The Supreme Court overturned a number of campaign finance laws in the Citizens United ruling over two years ago. And since that time, we have seen the corrosive power of runaway campaign spending, and who it benefits. In fact, the orgy of spending has become so embarrassing, that it has led some to believe that the Supreme Court may reassess their ruling. I’m not sure about that, but at any rate, the Court does have a vehicle to make tweaks to the prior precedent.
In upholding a 100-year-old state law, the Montana (Supreme Court) justices seemed to be openly defying Citizens United’s holding that the First Amendment grants corporations, and by extension labor unions, the right to spend unlimited amounts of their treasuries to support or oppose candidates.
The Supreme Court has already blocked the Montana decision, and the justices may simply set their counterparts in Helena straight by summarily reversing the finding.
But pressure is being applied — by members of Congress and nearly half the states, not to mention Justices Ruth Bader Ginsburg and Stephen G. Breyer — to at least let Montana make its argument.
Twenty-two states filed the amicus brief urging a hearing on the Montana Supreme Court case, to reassess some of the arguments from Citizens United, particularly around the appearance of corruption in unlimited corporate spending on elections, and the need for disclosure of the sources of the funding.
But there may be no need for the briefs and the Supreme Court ruling at all, according to one amicus brief from The Eleventh Amendment Movement, or TEAM:
Here’s TEAM’s argument, as laid out in an amicus brief filed with the Supreme Court: Because the plaintiff in the Montana case made a “technical error” by naming state Attorney General Steve Bullock in his official capacity, the 11th Amendment bars the Supreme Court from touching the Montana decision. The amendment affirms the principal of sovereign immunity, which prevents federal courts from interfering with lawsuits brought by individuals against state governments.
The group is represented by Carl Mayer, a New York lawyer who’s won cases against the likes of Nike and has been working on behaf of journalist Chris Hedges to strike down the indefinite detention provision of the National Defense Authorization Act. Last Wednesday, a federal judge sided with Hedges.
Mayer is known for his Hail Mary arguments. But this would have to get over a significant hurdle. You would need six justices to agree not to hear the case to uphold Montana’s campaign finance restrictions, and that seems like a very high bar, even with this unique states’ rights angle. It would give the Justices an easy out for bearing the burden of the consequences of their decision in Citizens United, however. Anyone can plainly see how this has tilted the playing field in elections, and rather than have to make the same arguments in favor again, the Justices could simply choose not to hear the case and let state courts work their will on the process. But that assumes a very high capability for shame on the part of Supreme Court justices, which I’m not seeing.
Rather, I would expect either a hearing on the Montana case along with a quick smackdown, saying that the precedent in Citizens United demands that Montana accede to the new regime of campaign finance laws (or the lack thereof), or no hearing at all, and just a command to comply with settled precedent.