The US Supreme Court issued a rare, landmark decision last week that went largely unnoticed and heavily under reported. The decision in “American Tradition Partnership v. Bullock” (ATP v. Bullock) overturned a Montana State Supreme Court ruling that the state law regulating independent corporate expenditures in elections is constitutional. The decision was rare because it was made without hearing any oral arguments (per curiam). Also rare was the Court overturning a century – old constitutional amendment in a state (Montana) which had been duly passed by its citizens, without hearing oral arguments. The case will have longstanding and grave impact on functional democratic elections, in that it expanded “Citizens United” to apply to state and local elections.
The shocking action taken by the 5 conservative justices, and the 4 “liberal” minority justices’ lack of fortitude to press for full hearings went virtually unreported in the media. It is rare for the Court to issue an opinion without hearing oral arguments, because under the Court’s own rules, only 4 of the 9 Justices are required to vote to accept a case. In this case, the minority “liberal” justices of the Court could have demanded to hear the full case on the merits, before expanding the scope of “Citizens United.” Instead, they wrote in dissent of the unsigned opinion:
Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the
Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition.
“The matter” was up to the four moderate Justices. Had they held to their constitutional principles and pushed the Court into hearing the case, much of the argument to allow states to regulate local campaigns would have been heard. Public opinion may have turned on the Court (Citizens United is already largely unpopular), and the Fall elections would have proceeded with state laws in place. As it stands post-decision in this case; the rush to opine with no resistance from the Court’s Moderate Justices has opened the floodgates to corporate spending in this election cycle – and puts our representative form of democracy in crisis. The arguments to hear the case were compelling, and bi-partisan.
An Amicus Curiae (Friend of the Court) brief submitted by 8 of the 11 living Retired Montana Supreme Court Justices argued that taking the case, and hearing full oral arguments was necessary to insure a fair and impartial judiciary at the state level:
Preserving an independent, fair and impartial judiciary, as well as avoiding the appearance of impropriety, is a compelling state interest of the “highest order.” The constitutional right to due process is fundamental, and in the context of campaign finance laws, must be balanced against free speech. The constitutional tension between these countervailing rights cannot be denied, and cannot be ignored.
The retired justices argued that ATP v. Bullock was separated from Citizens United in that ATP is a law governing state and local elections – whereas Citizens United governs only federal elections. In addition, the Montana law does not prohibit independent expenditure, merely establishes reporting and registration standards. The justices concluded the special interest money being spent on local and statewide judicial elections construes a direct conflict with the constitutional guarantee of due process, and a fair trial. A bi-partisan Amicus brief filed by two US Senators also addressed the special interest influence regulated under the Montana law.
A brief filed by Senators Sheldon Wasserman (Dem.) and John McCain (Rep.) argued the Montana law is necessary to give legislatures the ability to enact laws in response to campaign spending corruption:
The campaign finance system assumed by Citizens United is no longer a reality, if it ever was. The Court, if it grants the petition, should use this case to make clear that when legislatures build an appropriate record demonstrating the potential for corruption or the appearance thereof created by independent expenditures, they may enact appropriately tailored preventative legislation in response. The integrity of America’s elections has long been a bulwark of our nation and a beacon to other nations, and it is a worthy exercise of this Court’s attention to protect our elections from the manifest damage of its
decision allowing the vast, unregulated expenditures that now darken our political landscape.
The Senators also point out that prior to Montana enacting this law, the state had established a clear connection to the corporate campaign expenditures being regulated and corruption of the political process. Citizens United (FEC, 130 S. Ct. 876, 911 (2010)) gives deference to state legislatures finding cause to “dispel improper influence in special interest expenditures.” Therefore, it would be appropriate for the Court to hear oral arguments on a law addressing that influence. Additional compelling arguments were presented regarding the right of a state to regulate local elections, spending, and free speech.
Twenty-four Attorneys Generals from across the US filed an Amicus brief that clearly separates Citizens United from the Montana law. The AGs argue the case raises the question of how Citizens United principles apply in the context of state and local elections - Citizens relating to federal elections. The AGs also argue that Montana does not BAN corporate spending – the law merely sets up an expedited registration requirement and reporting standard for segregated campaign expenditures. Therefore, there is no limit on the “free speech” of these corporations. The AGs express the necessity to establish a clear standard and balance on state campaign law and a “free speech” – which Citizens United does not establish. The ability of states to regulate corruption and undue influence of special interest spending was at the heart of their argument:
This case addresses state regulation of corporate spending in state and local elections, in contrast to Citizens United, which analyzed a federal statute governing only federal elections. To grant summary reversal in this case would deprive the States of the opportunity to be fully heard on the question of how to reconcile the free speech rights recognized in Citizens United with the special problems attendant on protecting the democratic character of state and local elections and institutions.
While the Supreme court ruling on the Affordable Care Act has been celebrated and debated, this decision has flown under the radar – and will have darker, more immediate consequences in our political system. The minority on the Court did not exercise their due diligence to protect the rights of those petitioning the Court for a full hearing. They also forfeited an opportunity to have the above compelling oral arguments heard in public.
The Supreme Court has now fully opened the floodgates and trampled on the rights of states to regulate their own campaign finance expenditures. The hope lies in the future for a more moderate Court, continual state challenges to what is defined as “free speech” and if corporations are entitled to the same protections as human beings, and a Federal Constitutional Amendment.
For that, we must keep up the fight, or our children and grandchildren will be unaware of what democracy looks like.