Supreme Court to Review Citizens United?

Yesterday evening brought a fascinating new development on the noteworthy case in which the Montana Supreme Court, in December, upheld a Montana law barring corporate expenditures in Montana elections, despite the U.S. Supreme Court’s Citizens United decision which struck down a federal ban on such expenditures.  The big news, however, is not that the U.S. Supreme Court granted a stay of the Montana Supreme Court’s decision, pending fuller consideration by the Court (that was virtually a foregone conclusion). Two developments are more significant. 

First, the Supreme Court declined to follow the plaintiffs’ suggestion (in papers filed by long-time CFR opponent James Bopp) that the Court should simply summarily reverse the Montana Supreme Court’s decision without even the filing of a cert. petition in the normal course -- by simply treating the stay application as a cert petition. 

Second, but more significant, is a concurring statement by Justice Ginsburg, joined by Justice Breyer, putting on the table what has become abundantly clear since Citizens United: unlimited independent expenditures on behalf of candidates do, indeed, have the potential to corrupt our political process, and the Montana case presents the opportunity for the Court to review its CU decision in light of the experience of the last two years:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm'n make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

This concurring statement is the starting bell, and the fact that plaintiffs now must file a separate petition for certiorari means there will be an opportunity for the Court to consider, on fuller briefing, what the experience of the last two years -- as well as the unique factual record in the Montana case -- may bring to bear on the debate over whether unlimited independent expenditures are a threat to democracy.  The Battle of the Supremes has just gotten much more interesting.