By Bradley A. Smith
Today’s Supreme Court summary reversal of the Montana Supreme Court’s ruling that Citizens United v. FEC somehow didn’t apply to Montana is hardly surprising. A few first reactions:
1. The Court really had no choice. Montana’s case was that it is so uniquely corrupt that surely to combat that corruption it can interfere with First Amendment rights in ways that other states cannot. It would be a bit as if a state argued that its crime rates were so bad that the right of habeas corpus shouldn’t apply there, or that it should be allowed to conduct unreasonable searches without a warrant, or that its courts were so backlogged it should be allowed to dispense with the right to trial by jury. The argument is absurd on its face. Worse, the evidence that Montana produced is essentially “junk history” — for example, it pointed to cases of legislators being illegally bribed by individuals as reasons to limit independent campaign expenditures by corporations. Of course, were Montana to prevail, every state could make the argument about how its people and political system are uniquely corrupt. In any case, the people of Montana should be cheered to know that the U.S. Supreme Court thinks more highly of them than their own attorney general and state supreme court do.
2. Beyond the absurdity of Montana’s argument that Citizens United did not apply in its case is the question of whether the Court should have used the case to revisit Citizens United. But why would it do that? Nothing has changed in the past two years. If anything, from an empirical standpoint, Citizens United and other deregulatory cases — most notably, the Court of Appeals decision in SpeechNow.org v. FEC, which allowed the creation of what have become known as super PACs — have been quite successful.
Most obviously, none of the dire predictions of the naysayers have come true. We are not being swamped with corporate spending, which remains a small fraction of the total political spending. Fortune 100 firms aren’t even giving to super PACs or making expenditures on their own. There has been no scandal.