While Arizona v. United States got most of the attention in Monday’s news cycle, the Supreme Court’s summary reversal in American Tradition Partnership, Inc. v. Bullock did not go unnoticed. Fans of campaign finance, the First Amendment, politics, and freedom will recall that in Western Tradition Partnership, Inc. v. Attorney General of Montana the Montana Supreme Court bought into the argument of the state’s attorney general that the people of Montana are so uniquely corrupt and corruptible that Citizens United v. Federal Election Commission, upholding the right of corporations to make independent expenditures in campaigns, doesn’t apply in Montana.
This argument quite appropriately got the back of the Court’s hand – a per curiam, single paragraph opinion holding that “there can be no serious doubt” that Citizens United controlled the outcome. What remains interesting to me, however, is both the radicalism and now the apparent lawlessness of the four dissenting justices.
Let’s start with the radicalism of the dissenters’ position. In Citizens United, the group Citizens United sought to advertise and air a documentary movie about Hillary Clinton. At oral argument, the government argued that under the Constitution, it had the right to ban the distribution of books that contained even one line of political advocacy; internet communications; or the publication of a pamphlet, if financed at all by a corporation or union. While some have argued that the government abandoned this extreme position on re-argument, that is not so: then-Solicitor General Kagan stated quite clearly at the second oral argument, “We went back, we considered the matter carefully, and the government’s view is that … [the statute] does cover full-length books.” She added that there could be an as applied challenge to such a case, and that the government had no intention of pursuing books, but when questioned about pamphlets, said, “a pamphlet would be different.”
After those two arguments, the Court ruled that the mere fact that speech came from a corporation did not disqualify it from constitutional protection, and that corporations had a right to engage in independent expenditures relative to a political campaign. In an interminably long dissent written by Justice Stevens, the Court’s minority argued that, among other things, the decision went too far. In particular, Steven suggested that the majority might have found that a movie was not covered by the statute; or that the statute did not apply to Citizens United, as a non-profit corporation. But as the dissenters made clear in a footnote, “[o]ur reading of the Constitution would not lead us to strike down any statutes … in this case, and we therefore have no occasion to practice constitutional avoidance.” Since it is almost impossible to name any books or movies in the modern world which are not in some way produced or distributed by a corporation, this is a remarkable assertion of the government’s right to broadly censor speech. Yet in American Tradition Partnership, four justices – with Kagan having replaced Stevens – specifically dissented “for the reasons expressed in Justice Stevens’ dissent” in Citizens United.
The second element that interested me is that the dissenters did not simply vote against the summary reversal, they voted to deny certiorari. Writing for the dissenters, Judge Breyer admits that the case is an important one that the Court should hear. But Breyer then writes, “I do not see a significant possibility of reconsideration [of Citizens United]. Consequently, I vote instead to deny the petition.” Few doubt that justices can be strategic in deciding whether to vote to hear a case. But rarely are they so nakedly partisan.
Finally, there is the remarkable willingness to let stand a Montana decision that is clearly precluded by the Supremacy Clause. When the Court first stayed the Montana decision, Justice Ginsburg – joined by Justice Breyer – joined the stay order, suggesting that the Court should reconsider Citizens United but noting that “lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Clearly, they considered the Montana decision in direct derogation of Citizens United. Now both justices have signed on to an opinion suggesting that the Court should let the Montana decision stand. The only reason, apparently, is that they don’t like the controlling decision of the Court, and know that they can’t get it reversed. We can be pretty sure that the justices would never adopt such a standard were Texas to pass a law identical to those struck down Arizona v. United States, on the grounds that immigration so uniquely problematic in Texas that they get some special dispensation.