Taking no crap.
Rick Hasen brings word from 1 First Street, NE, that the
Supreme Court of the United States has stayed the order of the Montana Supreme Court which had upheld a ban in Montana state races on corporations funding independent expenditure ads, pending the expected filing of a petition for a writ of certiorari for the Supremes to review the case on the merits and,
as I've predicted, likely overturn the Montana ruling given the precedential weight of
Citizens United.
The plaintiffs had argued to Justice Kennedy, who's initially responsible for such motions from the Ninth Circuit, that the Montana decision was so egregiously bad that the Court should summarily reverse it without argument, and that in the meantime the Court should stay the effect of the Montana ruling given the irreparable harm it would do in the meantime to corporations now forbidden from speaking.
Justice Kennedy referred the matter to the Court as a whole, which opted for now to do the latter but not yet the former, as summary reversals apparently take six votes but stays only five. As Lyle Denniston notes, given the Court's calendar it's doubtful that this case will be heard, and the Montana ban even possibly reinstated, until after November's elections. All that, however, is prelude to the statement of Justices Ginsburg and Breyer in conjunction with the Order, which you should read, pause, and read again:
Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay.
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. _ (2010), 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. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.
Translated: Um ... guys? We know you just said two years ago in
Citizens United that "independent expenditures do not lead to, or create the appearance of,
quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate," but now that you've seen Sheldon Adelson and introduced the world to SuperPACs, do you want to rethink that? Because you kinda own it now.
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