At the opening of each oral argument session, a Supreme Court clerk announces, "All those having business before this honorable Court draw nigh and you shall be heard."But does the Court really listen?
We are about to witness an interesting case study. Late last week, the Court announced a stay of the Montana's Supreme Court's judgment in Western Tradition Partnership v. Bullock. In that case, a majority of the state court in essence said to the Supreme Court majority, "You boys don't know enough to pour water out of a boot." The opinion was a direct challenge to the Court's most controversial decision in at least a decade-Citizens United v. Federal Election Commission.
The Court will now consider a formal petition for cert., due by the end of next month. Citizens groups, states, and business groups can file amicus briefs on the issues raised by the case, laying out their critique of Citizens United.
Two Justices of the Court have invited them to do exactly that. In a statement appended to the Court's order, Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer (both dissenters in Citizens United) say: "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."
The Court won't withdraw Citizens United, but it is remotely possible that there could be some reinterpretation of the case-perhaps a sign that the Court is moving away from its full-throated endorsement of money's role in politics.
Since the Citizens United decision, the Court has been publicly lectured by the president, reviled by the public, and now defied by a group of other judges. The majority has also seen the Republican Party thrown into chaos: If the GOP's seemingly golden chance to win the White House goes off the rails, Sheldon Adelson and others like him will surely be partially responsible. Even the most rigid conservative might now privately be wondering whether Citizens United was a bridge too far.
Citizens United, decided by a 5-4 vote, held that the First Amendment requires that independent "electioneering expenditures" by corporations and unions not be restricted in any way. It's just possible that the Court's majority, or some members of it, did not appreciate what a storm the Court would bring down on itself by its unnecessarily broad and radical ruling. If so, that naïveté is surely at an end. And the Court majority may have realized that it has now irretrievably involved itself in campaign finance for terms to come-in ways that may continue to damage the Court's prestige.
Earlier this term, the Court without comment summarily affirmed the D.C. Circuit in Federal Election Commission v. Bluman. In Bluman, an alien lawfully resident in the United States had challenged a federal statute that makes it a crime for green-card holders to make independent expenditures or to contribute funds to candidates or parties. The D.C. Circuit rejected Bluman's challenge. If the logic of Citizens United-that expenditures for political speech are so highly protected that the integrity of the political process does not justify restrictions-is right, then Bluman seems almost certainly wrong. The summary affirmance seemed to some observers like a quick dive by the Court to avoid jumping back into the issue during an election year.
And waiting in the pipeline is United States v. Danielczyk, in which a federal District Judge in Virginia used Citizens United to breach the last barrier in federal election law. If corporations can make independent expenditures, Judge James Cacheris reasoned, then corporations can make direct contributions to candidates-even though that's currently a federal crime, and even though the Citizens United majority insisted they were not holding that. Danielczyk is currently pending at the Fourth Circuit Court (other circuits have held the reverse); it, or another case like it, sits there in the Court's future docket, ticking ominously.
So if Citizens United was a mistake, it is a mistake that will keep on giving over the years to come, as the Court becomes the agency regulating political speech. It will be an uncomfortable and risky role. Some members might be rethinking the wisdom of taking it on.
That brings us to Western Tradition. In that case, a shadowy political advocacy group (now known as American Tradition Partnership) brought suit against a Montana state law forbidding it from making independent expenditures to influence Montana state elections. A state trial court held the state ban unconstitutional.
But a five-justice majority of the Montana Supreme Court decided that the Supreme Court didn't understand Montana. Reciting the state's bitter history of domination by mining companies and their hirelings, the Court said, "the state of Montana, or more accurately its voters, clearly had a compelling interest to enact the challenged statute in 1912. ... The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests?"
We won't do your dirty work for you, the Montana court said to the Supreme Court. If you want to destroy our campaign finance laws, you do it. It was a remarkable act of defiance; equally remarkable were the two dissents, which said, in essence, we agree that Citizens United is bantha fodder, but believe the case still governs this one.
American Tradition quickly recruited James Bopp, the Darth Vader of campaign-finance regulation, to represent it before the Supreme Court. Bopp petitioned the Court for a stay of the Western Tradition ruling, which was unsurprisingly granted. The Court had at least the option of summarily reversing the decision, and sending it back to Montana-a procedure known a GVR ("grant, vacate, and remand"). Tom Goldstein is not surprised by its decision not to do that-it would be unusual for even this Court to be so high-handed with a state supreme court. It's still possible it will consider a formal cert. petition and then reverse the Montana decision without hearing oral argument.
But it's also just possible that the right-wing glacier may begin to melt. What is happening in campaign finance isn't good for either party. And if this were a Western movie, the Montana justices would be Roy Rogers and American Tradition would have a very twirlable black moustache. ("[I]f you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible," they tell donors.) At least one of the five-member majority (you fill in the name) may be repenting a hasty vote.
History shows that Supreme Courts sometimes, without quite admitting it, rethink their mistakes. They begin to limit and distinguish them, until finally the cases end up as dead letters.
The Court has asked us to speak. Lawyers and activists unhappy with Citizens United would be fools to pass up this chance to draw nigh and be heard. Let the briefing begin.
