# Could Montana get the court to reconsider Citizens United? **URL:** \ **Category:** Politics & Elections\ **Created:** [June 10, 2012, 8:43am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699 "2012-06-10T08:43:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 10, 2012, 8:43am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/1 "2012-06-10T08:43:28Z")
This first came to my attention recently on the [Rachel Maddow Show](http://www.youtube.com/watch?v=zJbzjiSDRRI). Click the link for the video clip of Rachel interviewing Steve Bullock, the Montana Attorney General who is is doing his best to continue having Montana elections comply with the state’s own Corrupt Practices Act. Maddow gives some history in her introduction, but here is something courtesy of the Montana Law Review: > [@](#): > > Montana’s continued fight to restrict independent corporate expenditures in cam-paigns for elected office is rooted in the State’s history of corrupt elections during the War of the Copper Kings, which took place at the turn of the twentieth century. At the time, the State was infamous for what historian K. Ross Toole described as the “massive corruption of the machinery of government” that resulted from the willingness of three mining barons, or “copper kings,” to spend millions of dollars in their battle to control both Montana’s vast copper deposits and its government. That corruption led fed-up Montana voters to enact by citizen initiative the State’s first ban on corporate campaign expenditures, the Corrupt Practices Act of 1912, which was the precursor to the statute at issue in Western Tradition. One hundred years later, that same history of corruption, according to Montana’s Attorney General Steve Bullock, provides the compelling inter-est necessary for the Montana Supreme Court to uphold the Montana statute even after Citizens United struck down a similar federal statute as facially unconstitutional. As one opposing amicus brief in Western Tradition phrased it, the Attorney General is “seeking a ‘Montana Exception’ to the Free Speech Clause” based on this State’s unique history of corrupt elections a century ago. > > [Once Upon A Time In The West: Citizens United, Caperton, And The War Of The Copper Kings](http://mtlr.org/wp-content/uploads/2011/11/Howell_Once-Upon-a-Time.pdf) Montana realized when the Copper Kings bought elections with such openness that even Mark Twain was moved to write about one such man, [William A. Clark](http://en.wikipedia.org/wiki/William_A._Clark): > [@](#): > > “He is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed’s time.” that something had to be done. So they enacted a law that worked very well in the state for the past century - until the Supreme Court’s Citizens Unived v. FCC ruling. However, Montana - unlike the two dozen or so other states that had similar statutes on the books - decided that the federal ruling would not and should not control state elections. This came to a head in the state when the “shady” [American Tradition Partnership](http://opposethefuture.com/post/3505922838/atp) filed a lawsuit against the State of Montana alleging that the state’s campaign contribution limits are unconstitutional under the premise that money spent in elections is free speech. However, the Montana high court ruled that Citizens United does not trump the Corrupt Practices Act: > [@](#): > > Writing for the Montana Supreme Court majority, Chief Justice Mike McGrath said the state had never lost a “compelling interest to enact” the law. “At the time,” McGrath wrote, “the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests.” > > The chief justice continued that today concerns of “corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly, Montana has unique and compelling interests to protect through preservation of this statute.” > > [American Constitution Society](http://www.acslaw.org/acsblog/mont-high-court-says-citizens-united-does-not-trump-state%E2%80%99s-corrupt-practices-act) Although the state court ruled that Montana was “unique,” it set into motion a flurry of activity from those outside of state. According to the [Huffington Post](http://www.huffingtonpost.com/2012/05/20/montana-citizens-united-campaign-finance-law_n_1530771.html): > [@](#): > > Twenty-two states and the District of Columbia are backing Montana in its fight to prevent the U.S. Supreme Court’s 2010 Citizens United decision from being used to strike down state laws restricting corporate campaign spending. > > Montana’s case was given a boost when U.S. Sens. John McCain, R-Ariz., and Sheldon Whitehouse, D-R.I., signed on in support. The senators argue evidence following the Citizens United decision, where millions in unregulated money has poured into presidential elections, shows that large independent expenditures can lead to corruption. This is significant because it shows that maybe it’s not so “unique” if nearly half the states in the union are on Montana’s side, but also that this movement is showing bipartisan support, a rare bird these days. Some feel that the SCOTUS, since it has the same membership, will not do much, possibly they might refuse to rule, possibly they won’t rule favorably, and possibly they won’t even modify their ruling to accomodate Montana (and other states with similar arguments or circumstances). However, when the Supreme Court granted a stay of a Montana state court ruling, > [@](#): > > Justice Ruth Bader Ginsburg wrote, “Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” > > She was quoting Justice Anthony Kennedy’s majority opinion in Citizens United, in which he claimed that expenditures might result in “influence over or access to elected officials” but would not “corrupt” them. > > [New York Times](http://www.nytimes.com/2012/02/22/opinion/the-supreme-court-and-citizens-united-take-2.html) When you combine the amazing unpopularity of this Supreme Court ruling with the legal actions that started with Montana and is apparently ending right back in the country’s high court, how likely is it that the court will be willing or able to backtrack against a ruling that was made such a short time ago? I am quite biased, although I am not alone in my bias, that Citizens United was a terrible ruling for democracy and the chilling effects of the ruling have already been felt. However, this seems like a solid foundation for a rare (but not unheard of) reversal from the High Court. What do the legal beagles of the Dope think? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 10, 2012, 12:36pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/2 "2012-06-10T12:36:59Z")
Not a snowball’s chance. I don’t concede their arguments ever held water, but even if they did, we would seriously expect SCOTUS to overturn a recent decision because Montana can point to corruption there over a century ago as making them unique? Not a chance, IMO. CU was decided properly. The First Amendment’s “text offers no foothold for excluding any category of speaker.” Here it is: > [@](#): > > Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; **or abridging the freedom of speech** , or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. There is no “except for corporations” clause there. Personal liberties, particularly those explicitly enumerated in the Constitution, don’t evaporate because people–even if it’s lots of people–don’t like them. There is no constitutional basis for overturning this. Ginsburg, as she often does, misses the point entirely. If this is ever overturned, it will be yet another example of at least 5 of the Justices detecting a right, lurking in the shadow of a penumbra, or in the Force, or with their Spider-sense. Because there is nothing in the Constitution that provides room for that decision. Hasn’t stopped them on many occasions before, but not a chance on this one. Not now. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [June 10, 2012, 1:07pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/3 "2012-06-10T13:07:52Z")
Must agree reluctantly with **Stratocaster** ’s forecast in the short term, unless a case came up enabling the Court to actually _revisit the meaning of “legal personhood” for corporate entities_. And in any case that still would not prevent a Koch or a Soros from just putting forth propaganda out of his own money, mind you. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 10, 2012, 3:23pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/4 "2012-06-10T15:23:53Z")
Fascinating that the OP has so recently come to believe that 22 states joining an action against current law has such meaning. How any states are now arrayed against the health care law again? In any event, no, I do not believe there s anything novel about the claim nor does it appear at present that the Citizens United decision is in jeopardy. But I am amused at the newfound interest in multi-state support for litigation. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 10, 2012, 5:27pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/5 "2012-06-10T17:27:18Z")
[George Will wrote a column on the topic](http://www.washingtonpost.com/opinions/montana-attempts-to-buck-the-supreme-court-on-citizens-united/2012/05/30/gJQA4DCi2U_story.html), if anyone’s interested: > [@](#): > > Three Montana corporations sued to bring the state into conformity with Citizens United by overturning a 100-year-old state law, passed when copper and other corporations supposedly held sway, that bans all corporate political spending. The state’s Supreme Court refused to do this, citing Montana’s supposedly unique susceptibility to corporate domination — an idea amusingly discordant with the three corporations’ failure even to persuade the state court to acknowledge the supremacy of the U.S. Supreme Court. \ > > Through March 31, the eight leading super PACs supporting Republican presidential candidates received contributions totaling $96,410,614. Of this, $83,220,167 (86.32 percent) came from individuals, only $13,190,447 (13.68 percent) from corporations, and only 0.81 percent from public companies. McConnell says, “Not a single one of the Fortune 100 companies has contributed a cent” to any of the eight super PACS. These facts refute such prophesied nightmares as The Post’s fear that corporate money “may now overwhelm” individuals’ contributions. \ > > Last year, Procter & Gamble, America’s largest advertiser, spent $2,949,100,000 — more than will be spent by the Obama and Romney campaigns and super PACs supporting them. The fact that more is spent to influence Americans’ choice of their detergent than of their president is as interesting as this: > > The collapse of liberals’ confidence in their ability to persuade is apparent in their concentration on rigging the rules of political persuasion. Their problem is that the First Amendment is the rule. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [June 10, 2012, 5:41pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/6 "2012-06-10T17:41:46Z")
> [@Stratocaster](#): > > [George Will wrote a column on the topic](http://www.washingtonpost.com/opinions/montana-attempts-to-buck-the-supreme-court-on-citizens-united/2012/05/30/gJQA4DCi2U_story.html), if anyone’s interested: Well, I’m convinced. George Will is an idiot. What he isn’t understanding, is that huge corporations aren’t going to lean to both sides based on the intelligent quality of their messages. They are going to side with the group that wants to slash their taxes and repeal regulations. Of course, you’re okay with that, since it’s _your side_ that gets to buy elections. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 10, 2012, 5:56pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/7 "2012-06-10T17:56:03Z")
> [@Lobohan](#): > > Well, I’m convinced. George Will is an idiot. > > What he isn’t understanding, is that huge corporations aren’t going to lean to both sides based on the intelligent quality of their messages. They are going to side with the group that wants to slash their taxes and repeal regulations. > > Of course, you’re okay with that, since it’s _your side_ that gets to buy elections. Well, I’m convinced you didn’t read the cite. (Emphasis added.) > [@](#): > > Through March 31, the eight leading super PACs supporting Republican presidential candidates received contributions totaling $96,410,614. Of this, $83,220,167 (86.32 percent) came from individuals, only $13,190,447 (13.68 percent) from corporations, **and only 0.81 percent from public companies.** McConnell says, **“Not a single one of the Fortune 100 companies has contributed a cent” to any of the eight super PACS.** These facts refute such prophesied nightmares as The Post’s fear that corporate money “may now overwhelm” individuals’ contributions. But don’t let that interrupt a good rant. BTW, I don’t support civil liberties because they benefit “my side.” I agreed that the Nazis could not be prohibited from marching in Skokie, regardless of how awful I find their positions. Because such is the nature of our constitutional protections. But I’ll again quote that famous idiot, George Will, in response to “your side”: > [@](#): > > This media and liberal anxiety was not conspicuous in 2004, when George Soros spent $24 million supporting Democratic candidates. Back then, the liberal/media complex embraced this Supreme Court principle enunciated in 1976: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” I had no problem when the shoe was on the other foot. It was Soros’s money to spend as he saw fit. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [June 10, 2012, 6:07pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/8 "2012-06-10T18:07:57Z")
> [@Stratocaster](#): > > Well, I’m convinced you didn’t read the cite. (Emphasis added.)But don’t let that interrupt a good rant. I’m sure it will remain this way in perpetuity. Surely there will be hesitance, since this is the first post-Citizens United election to start. But they will come around. Also, I have a problem with individuals (who will profit when their industry gets preferential treatment) do it too. > [@](#): > > BTW, I don’t support civil liberties because they benefit “my side.” I agreed that the Nazis could not be prohibited from marching in Skokie, regardless of how awful I find their positions. Because such is the nature of our constitutional protections. Unlimited donations to political campaigns isn’t a civil liberty. It’s an attempt to elevate monied interests above the common man. Anyone who actually cared about civil liberties should be against it. > [@](#): > > But I’ll again quote that famous idiot, George Will, in response to “your side”:I had no problem when the shoe was on the other foot. It was Soros’s money to spend as he saw fit. Soros is one. Most billionaires can be expected to donate to those that will make them more wealthy. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 10, 2012, 8:49pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/9 "2012-06-10T20:49:11Z")
> [@Bricker](#): > > Fascinating that the OP has so recently come to believe that 22 states joining an action against current law has such meaning. And what “meaning” did I ascribe it? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 10, 2012, 9:05pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/10 "2012-06-10T21:05:32Z")
> [@Lobohan](#): > > I’m sure it will remain this way in perpetuity. Surely there will be hesitance, since this is the first post-Citizens United election to start. But they will come around. So, there’s an urgent need to correct a “problem” that doesn’t exist. Got it. That’s good enough for me. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 10, 2012, 9:35pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/11 "2012-06-10T21:35:53Z")
I understand the desire to be cynical, however this decision was not some 9-0 slam dunk. The decision was a tenuous 5-4. It may not take much to have it reconsidered… especially when you have this: > [@](#): > > In March, Justices Ruth Bader Ginsburg and Stephen Breyer argued the Montana case would give the Supreme Court a chance to rethink Citizens United. > > “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 statement said. > > [UPI](http://www.upi.com/Top_News/US/2012/04/08/Under-the-Supreme-Court-High-court-agrees-to-consider-corporate-free-speech-post-Citizen-United/UPI-85721333873680/#ixzz1raEmVj7a) Additionally, you have recently retired justices who are making their dissention public… > [@](#): > > Former U.S. Supreme Court Justice John Paul Stevens says he expects the court has had second thoughts about parts of its controversial Citizens United ruling that eased restrictions on corporate spending in political campaigns. > > In the case, the divided court ruled that independent spending by corporations does “not give rise to corruption or the appearance of corruption.” Stevens says it’ll be necessary for the high court to create exceptions. > > The way the law is now, Stevens said there is evidence to support President Obama’s assertion that the Citizens United ruling would “open the floodgates for special interests – including foreign corporations – to spend without limits in our elections.” > > Stevens said in his speech: “Both the candidates and the audience would surely have thought the value of the debate to have suffered if the moderators had allocated the time on the basis of the speakers’ wealth, or if they had held an auction allowing the most time to the highest bidder. Yet that is essentially what happens during actual campaigns in which rules equalizing campaign expenditures are forbidden.” > > [CBS News](http://www.cbsnews.com/8301-250_162-57444175/ex-justice-john-paul-stevens-keeps-doubts-on-supreme-courts-citizens-united-ruling/) And… > [@](#): > > Retired Supreme Court Justice Sandra Day O’Connor issued her own polite public dissent to the recently decided case on corporate political spending, telling law students that the court has created an unwelcome new path for wealthy interests to exert influence on judicial elections. > [@](#): > > In her first public remarks on the controversial campaign money case, O’Connor said she believes the ruling creates “a problem for an independent judiciary.” > > One wrinkle in the Citizens United case that has largely escaped notice, O’Connor said, is that the opinion has the potential to unleash more corporate spending in campaigns for state judgeships, a problem she has already been highlighting because of the potential for donations to have a corrupting influence on the legal process. > > “This rise in judicial campaigning makes last week’s opinion in Citizens United a problem for an independent judiciary,” she told an auditorium of lawyers and Georgetown University law students in Washington. “No state can possibly benefit from having that much money injected into a political campaign.” > > The quandary of how to prevent campaign contributions from unduly influencing candidates for judgeships has been a pervasive problem that O’Connor has dedicated her post-Supreme Court years to solving. > > The issue was highlighted most recently by a case in West Virginia featured in an ABC News investigation. In that instance, a mining executive waged a multi-million dollar advertising campaign to elect the swing justice on the West Virginia Supreme Court. The judge then presided over a case the executive’s company had appealed to the court. > > More than 80 percent of state court judges must face the voters in elections at some point during their time on the bench, O’Connor said. > > [ABC News](http://abcnews.go.com/Blotter/oconnor-citizens-united-ruling-problem/story?id=9668044) Additionally, there is much speculation that the release of David Souter’s unpublished dissent could impact this case: > [@](#): > > Souter wrote an unpublished draft dissent against Citizens United, the case that opened the door to super PACs; it was an issue dear to his heart, notes Richard Hasen at [Slate](http://www.slate.com/articles/news_and_politics/jurisprudence/2012/05/citizens_united_justice_david_souter_s_dissent_in_the_supreme_court_s_momentous_campaign_finance_case_.html). The dissent was likely a scathing one: According to a [_New Yorker_](http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin) piece by Jeffrey Toobin, it “aired some of the Court’s dirty laundry.” > [@](#): > > Toobin writes that “Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” The retired justice may well have been suggesting that the court was breaking a rule prohibiting justices from settling matters neither raised by the parties nor inquired about by the justices. A decision in the case was postponed at the time, perhaps for fear Souter’s dissent would “damage the court’s credibility,” according to Toobin. > > [Newser](http://www.newser.com/story/146199/time-to-make-souter-dissent-on-citizens-united-public.html) We are not talking about unaffiliated cheerleaders here, we are talking about current and former justices who feel that the court made a mistake and they don’t rely on sour grapes - they point to actual evidence that the “corruption” which was dismissed in the majority decision is actually happening now, not just a century ago in Montana. Apparently the Dope legal beagles are more cynical about this than former and current justices? That’s fascinating… ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [June 10, 2012, 9:40pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/12 "2012-06-10T21:40:29Z")
> [@Stratocaster](#): > > So, there’s an urgent need to correct a “problem” that doesn’t exist. Got it. That’s good enough for me. Well that’s just silly. Is it your opinion that it shouldn’t be against the law to detonate a nuclear device in Manhattan? I mean it hasn’t happened yet! This is the level of conservative discourse. Advertising doesn’t work. Billionaires will evenly split between the parties. Magic will rule the day. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 10, 2012, 10:12pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/13 "2012-06-10T22:12:28Z")
> [@Lobohan](#): > > I mean it hasn’t happened yet! It’s better than that, dude… The pro-Citizens United side says there’s no evidence… but if there is evidence, the court should ignore it: > [@](#): > > (A)ttorneys for the U.S. Chamber of Commerce, a 100%-corporate funded lobbying group that has used the Citizens United decision to pump tens of millions of undisclosed dollars into federal elections over the last two years, is fighting to maintain the status quo. And they don’t want the justices to consider the evidence that the Citizens United decision, along with prior examples of corporate involvement in campaigns, causes corruption. > > The argument? The Chamber says there is “no evidence” that corporate electioneering has given rise to corruption anywhere. Moreover, the Chamber says that if there is “empirical evidence” that states have been corrupted by corporate involvement in campaigns, the court “should not” consider it. Here’s a quote from the [Chamber’s brief](http://sblog.s3.amazonaws.com/wp-content/uploads/2012/05/11-1179-Chamber-of-Commerce-Cert-Amicus.pdf) (which was filed with help from the law firm Wiley Rein): > > > [@](#): > > > > **But even if the Court were inclined to reconsider Citizens United based on empirical data, which it should not, there is no evidence in the record of this case detailing the level of spending on political speech since Citizens United was decided.** Pet. 27-28. The Montana Supreme Court only considered evidence of corruption in Montana “during the early twentieth century,” Pet. App. 17a, and, even then, the evidence had nothing to do with independent expenditures, see supra p.11. Moreover, this Montanaspecifi c evidence offers no insight into the effect or scope of corporate speech in the rest of the country. **As this Court is aware, a majority of states permitted corporations to speak freely long before Citizens United, yet there was no evidence then (and there is no evidence now) that elections in those states have been corrupted by immense corporate wealth.** Citizens United, 130 S. Ct. at 909 (citing Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae at 8 -9). In short, this case is not a suitable vehicle for addressing the question that Justice Ginsburg posed in the Stay Order. > > There is a mountain of evidence that corporate independent expenditures give rise to corruption. As Alexander Polikoff has [noted](http://colloquy.law.northwestern.edu/main/2011/02/so-how-did-we-get-into-this-mess-observations-on-the-legitimacy-of-citizens-united.html#fn39up), in a case that ruled that much of the Bipartisan Campaign Reform Act was constitutional, “one of the trial judges had summarized the following from a trial record that ran over 100,000 pages”: > [ul] > [li]Corporations and labor unions routinely notify Members of Congress as soon as they air electioneering communications.[/li][li]Members of Congress express appreciation for those communications.[/li][li]Campaign organizations are aware of who runs advertisements on the candidate’s behalf, and when and where they are run.[/li][li]Members of Congress seek to have corporations and unions run such advertisements.[/li][li]After elections are over, corporations and unions often seek “credit” for their support.[/li][/ul]If the Supreme Court can’t find any evidence that corporate independent expenditures make a difference in terms of voting patterns, justices should consider the U.S. Chamber of Commerce as part and parcel of the problem. The Chamber topped all other corporate independent expenditures in the last election, the 2010 midterms, with a $75 million campaign war chest used to elect big business-friendly members of Congress. The ad spending helped reverse the ideological makeup of Congress and boost the GOP’s numbers in the Senate. > > Republic Report cross-referenced the Chamber’s key vote guide with the Chamber’s attack ad budget, which benefited Senators Rubio, Johnson, Hoeven, Kirk, Scott Brown, Boozman, Coats, Moran, Paul, Blunt, Ayotte, Portman, and Toomey. And unsurprisingly, every senator who received campaign ads on behalf of the Chamber has voted in agreement with the Chamber 70-100% of the time. In fact, after Ron Johnson (R-WI) won his closely contested race with Russ Feingold (D-WI) with the help of million of dollars in corporate independent expenditures aired by the Chamber, Johnson traveled to the Chamber to personally thank its lead lobbyist, Tom Donohue. > > [The Republic Report](http://www.republicreport.org/2012/chamber-empirical-evidence/) So, evidence doesn’t exist… And if it does, it doesn’t count. :rolleyes: ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [June 10, 2012, 10:23pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/14 "2012-06-10T22:23:55Z")
> [@Lobohan](#): > > Billionaires will evenly split between the parties. At this particular point, yes. Most billionaires know that the current Republican fiscal strategy will ruin the American economy. It’s just that many of them think they will come out ahead due to temporary favors to businesses and the rich\*, while a lot of them realize that even most billionaires will not be come out ahead when our country plunges the world into a depression. \*Or own particular businesses that will be helped by the government, aka patronage. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [June 10, 2012, 10:25pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/15 "2012-06-10T22:25:49Z")
> [@Lobohan](#): > > Well that’s just silly. Is it your opinion that it shouldn’t be against the law to detonate a nuclear device in Manhattan? > > I mean it hasn’t happened yet! > > This is the level of conservative discourse. Advertising doesn’t work. Billionaires will evenly split between the parties. Magic will rule the day. No, I just foolishly thought you’d have some, you know, actual current reason for this urgency. Not some hobgoblin that you’re certain of, but absent any real current proof that some awful thing has (or will) occur. Constant reassertion of something does not make it so. But the fact remains, there’s no way this gets reconsidered. SCOTUS decisions don’t get reversed in this time frame, whatever you think the merit. Just to get back to the OP. BTW, are you getting tired of your schtick yet? The standard bearer for all things liberal, casting ad hominems, bad intentions and snark at anyone who disagrees with you? It’s kind of silly. I think I’m done with you. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [June 10, 2012, 10:28pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/16 "2012-06-10T22:28:36Z")
> [@Stratocaster](#): > > No, I just foolishly thought you’d have some, you know, actual current reason for this urgency. Not some hobgoblin that you’re certain of, but absent any real current proof that some awful thing has (or will) occur. Constant reassertion of something does not make it so. > > But the fact remains, there’s no way this gets reconsidered. SCOTUS decisions don’t get reversed in this time frame, whatever you think the merit. Just to get back to the OP. > > BTW, are you getting tired of your schtick yet? The standard bearer for all things liberal, casting ad hominems, bad intentions and snark at anyone who disagrees with you? It’s kind of silly. I think I’m done with you. Huh? You’re the one throwing out utter nonsense. I understand why you wouldn’t want to engage with someone who points out when you post nonsense, so feel free to ignore-list me. I’ll still point it out when I notice it. ---
**Author:** ![Lobohan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobohan/32/79_2.png) [@Lobohan](https://boards.straightdope.com/u/Lobohan)\ **Post date:** [June 10, 2012, 10:31pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/17 "2012-06-10T22:31:52Z")
> [@Ludovic](#): > > At this particular point, yes. Most billionaires know that the current Republican fiscal strategy will ruin the American economy. It’s just that many of them think they will come out ahead due to temporary favors to businesses and the rich\*, while a lot of them realize that even most billionaires will not be come out ahead when our country plunges the world into a depression. > > \*Or own particular businesses that will be helped by the government, aka patronage. Whereas I’m not nearly as confident that the split will luckily align to 50/50. Some billionaires are stupid. Look at the people who funded Santorum and Gingrich. Neither of their pocket-billionaires had a solid grasp on economics and politics. Yet the money dropped. ---
**Author:** ![John\_Stamos\_Left\_Ear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_stamos_left_ear/32/3198_2.png) [@John\_Stamos\_Left\_Ear](https://boards.straightdope.com/u/John_Stamos_Left_Ear)\ **Post date:** [June 10, 2012, 11:22pm UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/18 "2012-06-10T23:22:49Z")
New York Times columnist [Linda Greenhouse](http://en.wikipedia.org/wiki/Linda_Greenhouse) wrote the following in February: > [@](#): > > Is there really a chance that the Supreme Court might reconsider Citizens United? > A week ago, I wouldn’t have thought so… But a provocative statement last Friday by Justices Ruth Bader Ginsburg and Stephen G. Breyer makes this crazy idea worth pondering – which is undoubtedly what the two justices intended. > > Their three sentences were attached to an [order issued by the full court](http://www.supremecourt.gov/orders/courtorders/021712zr1.pdf) granting a stay in a case from Montana on the right of corporations to make independent political expenditures. > > The justices didn’t… simply overturn the state court ruling, at least not now, but they did grant the stay, without any noted dissents. In their separate statement, Justices Ginsburg and Breyer seemed not to buy the “Montana is different” rationale, instead viewing the state court’s ruling, despite its protestations to the contrary, as simple defiance of Citizens United. “Lower courts are bound to follow this court’s decisions until they are withdrawn or modified,” the two justices observed. > > Their point, rather, was that the Supreme Court itself should use this case as a vehicle to reconsider Citizens United. “Montana’s experience and experience elsewhere,” they said, “make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’ ” (The words they quoted are from Citizens United.) They went on to say that the appeal “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.” > > Justices Ginsburg and Breyer are savvy players, and their statement, gratuitous as a legal matter, has to be taken as strategic. So what was the strategy? To keep the public conversation going? To encourage a broader pushback? To induce Justice Kennedy to re-examine his basic assumptions in light of what’s happened since the day in January 2010 when Citizens United burst upon the political landscape? All of the above? > > More directly relevant, I think, is one of the most fascinating episodes in Supreme Court history, the court’s rapid reversal during the early 1940s on the question of whether Jehovah’s Witness children had a constitutional right to refuse to salute the flag. Only three years separated the 8-to-1 decision in [Minersville School District v. Gobitis](http://supreme.justia.com/cases/federal/us/310/586/case.html), in which the court held that “national cohesion” justified requiring the patriotic gesture by schoolchildren whose religion forbade it, from [West Virginia State Board of Education v. Barnette](http://supreme.justia.com/cases/federal/us/319/624/case.html), which upheld the children’s right under the First Amendment to “differ as to things that touch the heart of the existing order.” The second decision, with a majority opinion by Justice Robert H. Jackson, is one of the most eloquent endorsements of free expression the court has ever issued. The vote was 6 to 3. > > What happened? Two members of the new majority, Justice Jackson and Justice Wiley B. Rutledge, had joined the court since the Gobitis decision. But three others – Justice Hugo L. Black, William O. Douglas, and Frank Murphy – simply changed their minds. The first decision, issued as World War II was raging in Europe, was widely, if mistakenly, viewed as an official labeling of Jehovah’s Witnesses as traitors. Mobs burned down the religion’s Kingdom Halls, and thousands of children were expelled from schools around the country. Children were beaten and bullied. > Recounting these events, Professor Douglas E. Abrams of the University of Missouri Law School [wrote recently](http://www.mobar.org/uploadedFiles/Home/Publications/Precedent/2011/Summer/Reason%20and%20Passion%20Justice%20Jackson%20and%20the%20Second%20Flag%20Salute%20Case%20%28Part%20I%29.pdf) that “the intensity of the post-Gobitis brutality surprised and likely shocked justices who had not anticipated such a bloody backlash against the small, peaceable religious group that had summoned their protection.” The court’s about-face was widely hailed. “Blot Removed” was the headline that Time magazine – hardly a liberal organ in the 1940s – put on its report of the second decision. > > [New York Times](http://opinionator.blogs.nytimes.com/2012/02/22/do-over-season/) So the court already reversed a free speech issue within the timeframe of only a few years when new evidence swayed the minds of several of the justices. In the majority ruling, Anthony Kennedy wrote that “independent expenditures, including those made by corporations, do not give rise to corruption **or the appearance of** corruption.” The bolding is mine and the crux of the matter, in my opinion (and in the opinion of those whose opinions matter a lot more than mine). Using that as a litmus, one doesn’t even need to even prove corruption existed to target the initial ruling, one only needs to show “the appearance of corruption” to take the wind out of those sails. So let’s ask **Bricker** , who already feels that voter confidence in the system is paramount when it comes to Voter ID laws, if he feels that the post-Citizens United landscape has given “the appearance of corruption?” I think it has. So do parties as disparate as John McCain and Barrack Obama, the former who [filed an Amicus Brief with the court](http://www.ibtimes.com/articles/342848/20120518/citizens-united-mccain.htm?page=all), the latter who famously questioned the wisdom of the decision in a State Of The Union Address. For those who don’t agree that “the appearance of corruption” is enough (that can’t be Bricker though, can it?) there is evidence of actual corruption: > [@](#): > > Questions have emerged about Massey Energy chairman Don Blankenship’s relationships with state supreme court justices who are hearing appeals by Massey that could cost his company hundreds of millions of dollars. > > The court ruled in favor of Massey late last week in a $70 million appeal in which a smaller company, Harman Mining, had accused Massey of running it out of business by defaulting on contracts and committing fraud. Harman had won the case in trial court, but Massey appealed the case to the Supreme Court. > > Shortly after the initial verdict against Massey, Blankenship helped to raise $3.5 million for an advertising campaign that led to the defeat of one of the Supreme Court justices. The winning candidate who benefited from Blankenship’s money, Justice Brent Benjamin, has refused to recuse himself from the Massey appeals. Benjamin turned down a request from ABC News to be interviewed. Despite numerous requests for his recusal, Benjamin writes in court documents that there is no evidence to suggest that he cannot be fair and impartial. > > The Chief Justice Elliott “Spike” Maynard did recuse himself from the Massey appeal, having initially sided with the company in the first appeal, after photographs surfaced showing that he vacationed with Blankenship in the French Riviera. > > [ABC News](http://abcnews.go.com/Blotter/story?id=4604200&page=1) Even if someone feels that this is not real corruption - and somehow can dismiss the corruption that led Montana to putting their own law on the book a century ago (when a law designed to stop corruption does just that, can opponents really say with a straight face “see, no corruption in a hundred years” as evidence to overturn that law and others like it? Has the corrupting influence of money changed in 100 years?) - I can tell you that stories like this sure do give the “appearance of corruption.” Or as Bricker might say “my confidence has eroded.” ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 11, 2012, 12:02am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/19 "2012-06-11T00:02:43Z")
> [@Stratocaster](#): > > BTW, are you getting tired of your schtick yet? The standard bearer for all things liberal, casting ad hominems, bad intentions and snark at anyone who disagrees with you? It’s kind of silly. I think I’m done with you. In the future please keep this kind of personal commentary in The BBQ Pit. It doesn’t belong here. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [June 11, 2012, 12:07am UTC](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699/20 "2012-06-11T00:07:21Z")
It’s like I said in another thread: when some people see laws/rulings that allow the wealthy/corporations to _buy elections_, they think that proves that the problem is the _government_, and that therefore it needs to be nuked flat so said wealthy/corporations can do whatever they want to whoever they want without worrying about checks or anyone with any power looking over their shoulder. I don’t understand it, but I’ve seen it. Not here, IIRC, but it’s out there. [Next page](https://boards.straightdope.com/t/could-montana-get-the-court-to-reconsider-citizens-united/624699.md?page=2)