The Supremes vs. the Supremes

Posted by Trevor Burrus at http://www.cato-at-liberty.org/the-supremes-vs-the-supremes/


Corporations, corporate speech, and the 2010 Supreme Court decision in Citizens United v. Federal Elections Commission are a new Mason/Dixon line in American politics. In late December, in true antebellum fashion, the Montana Supreme Court, in Western Tradition Partnership, Inc. v. Attorney General of Montana, tried to nullify the case by ruling that Citizens United doesn’t apply to Montana’s “unique” electoral system. Because the Montana Supreme Court’s actions were in blatant disregard of the Citizens United decision, the Supreme Court will likely overturn the opinion summarily—that is, without briefing or argument. Montana will not be a First Amendment-free zone for long.
Some who vehemently oppose the Citizens United decision have come out against the Western Tradition Partnership opinion as unsupportable judicial overreaching. Ian Millhiser of the Center for American Progress writes that, just as “it is wrong when Newt Gingrich plots a campaign of massive resistance against judges he disagrees with… Montana’s justices act no less illegitimately when they fail to follow a binding Supreme Court precedent.” Absolutely.
Mr. Millhiser is also correct in citing Justice James C. Nelson’s vigorous dissent as an admirable example of judicial modesty. While Nelson is very clear that he does not support Citizens United, he is even clearer in admonishing the majority of the court for ignoring binding precedent from the highest court in the land. The issue for Justice Nelson is clear, and it does not hinge on whether he disagrees with the Supreme Court’s opinion. Instead the question is simple: “Has the State of Montana identified a compelling state interest, not already rejected by the Supreme Court, that would justify the outright ban on corporate expenditures for political speech?” “Having considered the matter,” Justice Nelson writes, “I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them.”
With criticisms like this coming from ideological compatriots, one has to wonder what the five justices in the majority were thinking. When reading the opinion, however, what they were thinking is abundantly clear: they wanted to register their dissent with Citizens United as well as cling to a distant hope that the Supreme Court might review the scope of their decision. Unfortunately for them, because of the method in which they chose to do so, coupled with the recentness of Citizens United and a blistering dissent that catalogs their errors, the Supreme Court will not seriously examine their reasoning.
The only remaining question is whether the Supremes will unanimously vote to reverse the Montana court and thus resolutely affirm the status of SCOTUS within the judicial hierarchy. There remains a possibility, however, that one or more of the justices who disagree with Citizens United (and recall that Justice Kagan argued the case before the Court as solicitor general) will use the case to voice their opposition to the decision. This would be unwise, and it would only contribute to the perception of the Court’s fractured nature. The justices should not be fractured on condemning a lower court that blatantly ignores controlling precedent.
Yet the opinion is still worth reading for anyone interested in campaign finance law generally or in Citizens United itself. Not only does the majority opinion make a woefully inadequate attempt to distinguish Montana’s “unique” situation from facts already addressed by the Supreme Court, but it highlights fundamental differences in political philosophy that Citizens United has brought to the surface.
Contrary to popular opinion, including the opinion of President Obama voiced in his 2010 State of the Union address, Citizens United did not overturn a “century of law” or dramatically break with existing First Amendment doctrine. Instead, the Court merely logically extended what it said in the foundational campaign finance case of Buckley v. Valeo (1976): the government’s only compelling interest in regulating campaign finance comes from preventing the corruption or the appearance of corruption of elected officials. “Corruption” here means quid pro quo corruption—that is, “you give money to my campaign and I’ll vote the way you want me to, a way that I wouldn’t have voted otherwise.” It does not mean “corrupting” the supposed purity of the campaign process by letting one speaker have a louder voice than other speakers. Nor is it “corruption” for representatives to respond to the demands of their constituency. That’s democracy. The Court in Buckley ruled that the dangers of quid pro quo corruption are only substantially present when direct contributions are given to candidates. Those dangers are not as present when parties do not give money directly to the candidate but instead spend money independently of the campaign. Citizens United merely extended this reasoning to corporations.
This intuitively compelling distinction is consistently ignored by critics of Citizens United. Throughout the majority opinion, the Montana Supreme Court also ignores this distinction (which it is legally bound to enforce) and instead uses the term “corruption” to describe both bribery and disproportionate influence. In one particularly telling passage, the court explains how a corporation “willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices.” This idea—the idea that the government should regulate the electoral marketplace of ideas in order to ensure that voices are not drowned out by louder voices—is not just wholly repugnant to the First Amendment, it is a dangerous power to give to government officials who depend on elections to keep their jobs.
Perhaps no one has put this idea better than Justice Scalia in the opening lines to his dissent in Austin v. Michigan Chamber of Commerce, which Citizens United overruled:

“Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___.” In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe. I dissent because that principle is contrary to our case law and incompatible with the absolutely central truth of the First Amendment: that government cannot be trusted to assure, through censorship, the “fairness” of political debate.

Instead of focusing on quid pro quo corruption, the Montana court’s central worry is that corporate speech will be effective, that is, that people might actually believe it. It’s hard not to see some measure of paternalism in this idea, as well as an implicit assumption that corporations only try to deceive and brainwash rather than inform. Thus, a majority of Montana’s Supreme Court would empower the government to ensure that citizens are protected from these devious forces by benevolent officials who will in no way try to control the process for their own ends. This much faith should never be placed in elected officials. Thankfully, a majority of the Supreme Court of the United States agrees.