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Montana CU do-over

SEE MAIN WESTERN TRAD PARTNER ATI V MONTANA

disambig?

merri ok

i assume same 5-4 as CU =

5-4 ~ breyer

THE dissenting opinion by Justice Stevens[39] was joined by Justice Ginsburg, Justice :{Breyer, and Justice Sotomayor}:

Majority

Kennedy, joined by Roberts(bush 43 2005], Scalia [RR 1986 over bork?], Alito; Thomas(all but Part IV); Stevens, Ginsburg, Breyer, Sotomayor (Part IV)

Concurrence

Roberts, joined by Alito

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master plan 11 4 24

immed after ruling hockey stick dk money? politics by extortion?

ATP ATI montana amicus brief said 2 claims demo BS bullock WHITEHOUSE w/ mccain VS MCCONN AMICUS

11-1179-Senators-Whitehouse-and-McCain-Cert-Amicus

sep by other reps

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American Tradition Partnership, Inc. v. Bullock - SCOTUSblog

Docket No.|Op. Below|Argument|Opinion|Vote|Author|Term|

11-1179Mont. S. Ct.Not ArguedJun 25, 20125-4Per CuriamOT 2011

Holding: Montana’s argument in support of the judgment below was either already rejected in *Citizens United v. FCC* or fails to meaningfully distinguish that case.

Plain English Summary: Ordinarily, the Supreme Court does not decide a case until after it has accepted it for full-scale review, receives written legal arguments, and then holds a public hearing. Now and then, and perhaps as many as nine or ten times each Term, the Court disposes of a case without those formalities: it decides the case very soon after getting the case, usually indicating that the outcome was so predictable that there was no need to engage in full-dress proceedings. That speeded-up procedure is what the Court did on Monday in this case, by a 5-4 vote. The result was to overturn a Montana Supreme Court decision upholding a 1912 voter-approved ban on corporations’ spending of their own money on political campaigns in that state. The Court majority found that state court ruling obviously in conflict with a decision the Supreme Court had issued in January 2010 striking down a similar ban in federal law against corporate spending on politics. The four Justices in dissent conceded that the Supreme Court majority was not ready to take a new look at that 2010 decision, even in a case in which a state’s highest court had found that the state had a history of corrupt corporate influence in its political life.

Judgment: Summarily reversed in a per curiam opinion on June 25, 2012.

SCOTUSblog Coverage

Briefs and Documents

Certiorari-stage documents

2/2112

Will Supreme Court Reconsider Citizens United? Two Justices Hope So##

Last Friday night at the close of business, she wrote a statement in which she was joined by Justice Stephen Breyer suggesting that the controversial Citizens United case should be revisited.

Justice Ruth Bader Ginsburg knows an opportunity when she sees one.

Last Friday night at the close of business, she wrote a statement in which she was joined by Justice Stephen Breyer suggesting that the controversial Citizens United case should be revisited.

Citizens United held that the government cannot ban campaign spending by corporations in elections.

Ginsburg had voted against Citizens United in 2010, and in Friday's statement she was signaling that a new case might give the court the opportunity to look at Citizens United again.

The statement did not come out of the blue.

Last December the Montana Supreme Court issued an opinion that appears to directly contradict Citizens United, upholding a Montana law that prohibits campaign expenditures by corporations. Opponents of the decision asked the U.S. Supreme Court in Washington to step in and block the Montana decision.

"If Montana is allowed to flout this court's holdings in Citizen's United in such a willful and transparent fashion, respect for the Constitution, the rule of law, and this court will be eroded," wrote James Bopp, a lawyer for plaintiffs challenging the Montana ruling.

The Supreme Court did step in at 6 p.m. on the eve of a three-day weekend to put a temporary hold on the Montana Supreme Court's ruling. Ginsburg agreed with the decision. "Because lower courts are bound to follow this court's decisions," the stay was necessary, she said.

But then she went further.

Ginsburg and Breyer (another Citizens United dissenter) said in a statement attached to the court's order: "Montana's experience, and experience elsewhere since this court's decision in Citizens United v. FEC makes it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption.'"

She quoted a key part of the Citizens United decision.

Ginsburg, of course, recognizes that the five justices who ruled in favor of Citizens United still sit on the bench.

Fred Wertheimer, president of Democracy 21,who is a fierce critic of Citizens United, explains her strategy.

"If the court takes this case, it will create the opportunity on the highest legal stage to present a compelling case to the Supreme Court that it was dead wrong in the Citizens United decision. That may not convince the five justices who decided the case to change their opinion, but it will be part of building the case that will ultimately prevail that Citizens United was wrongly decided and must be reversed."

Ginsburg references the current state of affairs in elections. She says, "in light of the huge sums currently deployed to buy candidates' allegiance " the Court should have the opportunity to explore whether Citizens United "should continue to hold sway."

Even though the Supreme Court granted the temporary stay, it does not mean that the court will automatically take up the case and hold hearings. It could "summarily reverse" and send the case away without merit briefs or arguments.

Tom Goldstein, publisher of the influential ScotusBlog, says that the court could summarily reverse a decision with only five votes, but a different "rule applies when four justices are willing to vote for plenary review - i.e., the "four votes to grant" rule takes precedence over the "five votes can summarily reverse" rule.

While the majority of the Montana Supreme Court distinguished its case from Citizens United by saying that the Montana case "concerns Montana law, Montana elections and it arises from Montana history" Justice James C. Nelson dissented.

Nelson said that while he "thoroughly" disagrees with Citizen's United, "the fact remains that the Supreme Court has spoken."

"Like it or not, Citizens United is the law of the land as regards corporate political speech. There is no 'Montana exception," he said.

"The Supreme Court could not have been more clear in Citizens United v. FEC: Corporations have broad rights under the First Amendment to the United States Constitution to engage in political speech, and corporations cannot be prohibited from using general Treasury funds for this purpose based on antidistortion, anticorruption or shareholder-protection interests," Nelson wrote.

Two years after the Citizens United case, those on opposing sides seemed to be getting even further apart when it came to the issue of campaign finance. But Ruth Bader Ginsburg is laying down a marker.

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NYT

Court Declines to Revisit Its Citizens United Decision

David Bossie, right, head of Citizens United, with Kasey Kirby at the group’s office on Monday.Credit...Brendan Hoffman for The New York Times

By Adam Liptak

June 25, 2012

WASHINGTON — In a brief unsigned decision, the Supreme Court on Monday declined to have another look at its blockbuster 2010 campaign finance decision, Citizens United v. Federal Election Commission.

In the 5-to-4 ruling on Monday, the court summarily reversed a decision of the Montana Supreme Court that had upheld a state law limiting independent political spending by corporations. That decision, the United States Supreme Court said, was flatly at odds with Citizens United, which said the First Amendment allows corporations and unions to spend as much as they like to support or oppose political candidates.

“The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the opinion said. “There can be no serious doubt that it does.” Montana’s arguments, the opinion continued, “either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”...

The four members of the court’s liberal wing dissented in an opinion by Justice Stephen G. Breyer, who said that Citizens United itself had been a mistake.

“Even if I were to accept Citizens United,” Justice Breyer continued, “this court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Given the history and political landscape in Montana, that court concluded that the state had a compelling interest in limiting independent expenditures by corporations.”

Justice Breyer added, “Montana’s experience, like considerable experience elsewhere since the court’s decision in Citizens United, casts grave doubt on the court’s supposition that independent expenditures do not corrupt or appear to do so.”

Critics of the Supreme Court’s campaign finance rulings attacked Monday’s decision, saying Citizens United had led to unprecedented levels of outside money pouring into the presidential campaign and races for the House and Senate — the vast majority of it raised not from corporations but from wealthy individuals and spent by “super PACs” and other independent groups.

Democrats in Congress have proposed measures to rein in campaign spending, strengthen disclosure requirements and even amend the Constitution to reverse Citizens United.

In Montana, the State Supreme Court had ruled that the state’s distinctive history and characteristics warranted a departure from the principles announced in Citizens United.

Chief Justice Mike McGrath of the Montana Supreme Court, writing for the majority in its 5-to-2 ruling, stressed that the state’s experience of having its political system corrupted by corporate interests early in the 20th century justified the ruling.

“At that time,” Chief Justice 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 voters had more than enough of the corrupt practices and heavy-handed influence asserted by the special interests controlling Montana’s political institutions.”

This year, by coincidence, in a hotly contested election for a United States Senate seat in Montana, Senator Jon Tester, a Democrat, has been the target of $2.6 million in spending by outside groups. On Monday, he said that the Supreme Court decision had “rolled back Montana 100 years, back to the time literally when millionaires and billionaires bought elections, and they did it under the guise of free speech, which is crazy.”

In February, two of the dissenters in Citizens United — Justice Ruth Bader Ginsburg, joined by Justice Breyer — issued a statement explaining that “lower courts are bound to follow this court’s decisions until they are withdrawn or modified.”

They added, though, that the United States Supreme Court should use the Montana case to consider the aftermath of Citizens United. The case, they wrote, was “an opportunity to consider whether, in light of the huge sums deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

A spokesman for President Obama, Eric Schultz, said, “We are disappointed that the Supreme Court did not take the opportunity presented by the Montana case to revisit its decision in Citizens United.”

Mr. Schultz said that since that decision in 2010, “we have seen unprecedented amounts of campaign spending, often by groups that won’t disclose their donors. Citizens United was wrong when it was decided, and as two Supreme Court Justices have observed since, independent expenditures by corporations are threatening the health of our democracy.”

Nicholas Confessore contributed reporting from New York.

A version of this article appears in print on June 26, 2012, Section A, Page 14 of the New York edition with the headline: Court Declines to Revisit Its Citizens United Decision. Order Reprints | Today’s Paper | Subscribe

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IRATE

American Tradition Partnership, Inc., FKA Western Tradition Partnership, Inc., et

al. v. Steve Bullock, Attorney General of Montana 567 U.S. __ (2012)

Per Curiam

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA

No. 11–1179. Decided June 25, 2012

PER CURIAM.

A Montana state law provides that a “corporation may not make . . . an expenditure in

connection with a candidate or a political committee that supports or opposes a candidate or a

political party.” Mont. Code Ann. §13–35–227(1) (2011). The Montana Supreme Court rejected

petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220,

271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar

federal law, holding that “political speech does not lose First Amendment protection simply

because its source is a corporation.” 558 U. S. _, _ (2010) (slip op., at 26) (internal quotation

marks omitted). The question presented in this case is whether the holding of Citizens United

applies to the Montana state law. There can be no serious doubt that it does.See U. S. Const.,

Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already

rejected in Citizens United, or fail to meaningfully distinguish that case.

The petition for certiorari is granted. The judgment of the Supreme Court of Montana is

reversed.

It is so ordered.

JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE

KAGAN join, dissenting.

In Citizens United v. Federal Election Commission, the Court concluded that “independent

expenditures, including those made by corporations, do not give rise to corruption or the

appearance of corruption.” 558 U. S. _, _ (2010) (slip op., at 42). I disagree with the Court’s

:{hold-ing for the reasons expressed in :{Justice Stevens’ dissentin that case. As Justice Stevensexplained, “technically independent expenditures can be corrupting in much the same way as}:

direct contributions.” Id., at _ (slip op., at 67–68). Indeed, Justice Stevens recounted a

“substantial body of evidence” suggesting that “[m]any corporate independent expenditures . . .

had become essentially interchangeable with direct contributions in their capacity to generate

quid pro quo arrangements.” Id., at _ (slip op., at 64–65).

Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not

bar the Montana Supreme Court’s finding, made on the record before it, that

independent expenditures by corporations did in fact lead to corruption or the

appearance of corruption in Montana. Given the history and political landscape in Montana,

that court concluded that the State had a compelling interest in limiting independent

expenditures by corporations. 2011 MT 328, ¶¶ 36–37, 363 Mont. 220, 235–236, 271 P. 3d 1, 2

36–37. Thus, Montana’s experience, like considerable experience elsewhere since the Court’s

decision in Citizens United, casts grave doubt on the Court’s supposition that independent

expenditures do not corrupt or appear to do so.

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider

Citizens United or, at least, its application in this case. But given the Court’s per curiam

disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead

to deny the petition.[huh?]

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       December 30, 2011 and After: Montana Supreme Court Rules that State Campaign Finance Ban Stands in Spite of ‘Citizens United’ Decision

The Montana Supreme Court rules 5-2 in the case ofWestern Tradition Partnership v. Bullockthat a century-old law prohibits corporate spending in state and federal elections conducted within the state. The ruling seems to challenge the US Supreme Court’s Citizens United ruling (see January 21, 2010). The case stems from a challenge by a “social welfare organization,” Western Tradition Partnership (WTP, which changed its name to American Tradition Partnership after the original lawsuit was filed),joined by two other corporate entities, to Montana’s 1912 Corrupt Practices Act (CPA). The law banned corporate spending in elections, after two out-of-state copper industry magnates attempted to “buy” the Montana legislature by pouring money into the 1894 state elections. The law declares that “corporations may not make… an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” 

The Montana Supreme Court finds that the CPA is needed to ensure the integrity of Montana’s elections, and to make sure that citizens and not corporations are running the state. However, the Court acknowledges that its ruling conflicts with the Citizens United decision, though it says that the Citizens United decision allows for restrictions on corporate political speech if the government can demonstrate that the restrictions are as minimal as possible to achieve a compelling governmental interest. The Montana Court rules that because of Montana’s history of corporate vote-buying and the narrow restrictions of the CPA, the law should stand. It also notes that Western Tradition Partnership argued in its original suit that disclosure laws, as opposed to outright bans, would serve the public interest and guard against corruption; however, the organization is currently involved in another lawsuit in which it argues that those same disclosure laws are unconstitutional restrictions of the freedom of speech. 

[WESTERN TRADITION PARTNERSHIP V. BULLOCK ET AL, 12/30/2011 ; LOS ANGELES TIMES, 1/4/2012; REUTERS, 6/25/2012; OMB WATCH, 6/25/2012; WASHINGTON POST, 6/25/2012;OMB WATCH, 7/10/2012]

Even one of the dissenters, Justice James C. Nelson, disagrees with the Citizens United characterizations that corporations are legally people, writing: “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creatures of government. 

Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.” WTP’s director Donald Ferguson says after the decision that the case hinges on freedom of speech (see January 21, 2010): “The current state law says that if you own a business and you would like to use the resources of the business to speak out about how you see the law, you essentially have to ask prior permission from the state. Under the current regime, the state regulatory agencies and the newspapers basically have a monopoly on information. We’re simply trying to put more free speech in motion.”

*[LOS ANGELES TIMES, 1/4/2012; HUFFINGTON POST, 1/4/2012] 

Legal Scholars Anticipate Montana Ruling to be Overturned - 

Paul Ryan of the Campaign Legal Center calls the Montana high court’s ruling “an antidote to the crabbed view of corruption” displayed in Citizens United. Ryan, like many others, anticipates the US Supreme Court will overturn today’s ruling. [HUFFINGTON POST, 1/4/2012] One of those others is law professor Richard Hasen, who writes: “[I]f the Court were being honest in Citizens United, it would have said something like: ‘We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.’ But the Court didn’t say that, because it would have faced even greater criticism than it already has. So it dressed up its value judgment (no corruption ‘implied in law’) as a factual statement. The Montana Supreme Court called SCOTUS [the US Supreme Court] on this. And when SCOTUS reverses, the disingenuousness of this aspect of CU will be on full display for all.” Hasen is referring to the Court’s finding in Citizens United that independent spending in elections does not legally imply corruption. [RICK HASEN, 1/1/2012] 

Appeal to Supreme Court - Attorneys for WTP and the other corporate plaintiffs will appeal to the US Supreme Court on the grounds that Montana is bound by the Citizens United decision and that the decision applies to state as well as federal elections. Attorney James Bopp, in filing the appeal, will say: “If Montana can ban core political speech because of Montana’s unique characteristics, free speech will be seriously harmed. Speakers will be silenced because of corruption by others over a century ago.” The US Supreme Court will quickly issue a stay of that decision. [REUTERS, 6/25/2012; OMB WATCH, 6/25/2012] 

When the case reaches the US Supreme Court, the name of the plaintiff will change into “American Tradition Partnership,” and the Court’s documentation will reflect that change. The Court will overrule the Montana decision (see June 25, 2012). After the decision, American Tradition Partnership’s Web site will disappear, but the liberal accountability organization SourceWatch will describe the organization’s parent, the American Tradition Institute, as described in the group’s mission statement: “a public policy research and educational foundation… founded in 2009 to help lead the national discussion about environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and free-market principles of stewardship.” ATI and its affiliates are pro-development and against expanded environmental regulation, according to SourceWatch’s documentation, made up of “a broader network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” [SOURCEWATCH, 2012]

http://en.wikipedia.org/wiki/Western_Tradition_Partnership,Inc.v._Attorney_General_of_Montana#)] 

Free Exercise Clause (http://en.wikipedia.org/wiki/Free_Exercise_Clause)

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