[EL] SCOTUS stay request in Montana case

Fri Feb 10 13:03:54 PST 2012

:And when it does come, I very much hope that the four dissenters make the point I made in this post, about the hypocrisy of the Supreme Court's decision in Citizens United:
Facts? We Don't Need No Stinking Facts: The Montana Supreme Court, SCOTUS, and Citizens United"

This is an utterly unfair characterization of the Court's opinion, and as I've pointed out before, comes from a refusal to consider the Court's opinion on its terms, rather than the terms the commentator would have preferred the Court use.

It would be like saying that the dissenters in Citizens United were "hypocritical:" Constitution? We Don't Need No Stinking Constitution: The Montana Supreme Court, SCOTUS, and Citizens United.

But I don't think for a moment that the dissenters in Citizens United were hypocritical or ignoring the Constitution (even though I do think they were horribly wrong).

One thing I always emphasize to my students is that you have to take a court's decisions on its terms if you want to understand what the Court was doing, and to advocate effectively either using that decision for your advantage, or advocating to change it.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, February 10, 2012 2:42 PM
To: law-election at UCI.edu
Subject: [EL] SCOTUS stay request in Montana case

Jim Bopp Goes for Broke in Montana Campaign Finance Case, and Just Might Get It<http://electionlawblog.org/?p=29674>
Posted on February 10, 2012 11:40 am<http://electionlawblog.org/?p=29674> by Rick Hasen<http://electionlawblog.org/?author=3>

Today the James Madison Center filed this application for a stay<http://www.jamesmadisoncenter.org/cases/files/2012/02/Application-for-Stay-with-Appendix.pdf> of the Montana Supreme Court ruling <http://electionlawblog.org/wp-content/uploads/MT-expenditures-decision.pdf> upholding state law barring corporate independent spending in state elections.  As I have explained<http://electionlawblog.org/?p=27232>,the opinion upholds<http://hosted.ap.org/dynamic/stories/U/US_CAMPAIGN_FINANCE_MONTANA?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT> Montana's ban on independent corporate spending on state elections, and it seems to run headlong into the U.S. Supreme Court's opinion in Citizens United.  Eugene Volokh <http://volokh.com/2011/12/30/montana-supreme-court-vs-the-united-states-supreme-court/> predicts the Court will hear the case and reverse, and Calvin Massey<http://www.thefacultylounge.org/2011/12/is-montana-so-different-that-citizens-united-doesnt-apply.html> predicts a summary reversal.  (More analysis <http://www.scotusblog.com/2011/12/a-citizens-united-sequel-different-result/> from SCOTUSBlog.)

The Corporations opposing the law have now filed the stay application, which would stay the Court's ruling and allow corporate spending in Montana elections pending the filing and decision on a cert. petition to be filed in the Supreme Court.  But Bopp's application does more than that: "The Corporations also request that this matter be referred to the Court, that this application be treated as a petition for a writ of certiorari, that the petition be granted, and that the Montana Supreme Court's decision be summarily reversed. The lower court's refusal to follow Citizens United is such an obvious, blatant disregard of its duty to follow this Court's decisions that summary reversal is proper."

Not only do I think that Bopp is likely to get his stay, he's fairly likely to get his summary reversal.  Now the Court may not grant it now.  Justice Kennedy might issue a stay, and then there can be a summary reversal after the cert. petition is filed.  But I am very confident a summary reversal will be coming.

And when it does come, I very much hope that the four dissenters make the point I made in this post<http://electionlawblog.org/?p=27232>, about the hypocrisy of the Supreme Court's decision in Citizens United:

Facts? We Don't Need No Stinking Facts: The Montana Supreme Court, SCOTUS, and Citizens United<http://electionlawblog.org/?p=27232>

...How did the Montana Supreme Court try to get around the holding of Citizens United?  It took SCOTUS's statement that independent spending cannot corrupt and pointed to evidence that such spending has in fact corrupted in Montana.

But SCOTUS is likely to conclude that this kind of evidence is foreclosed by CU.  Why?  Brad Smith<http://www.campaignfreedom.org/blog/detail/charge-the-montana-supreme-court-takes-on-citizens-united> explains: "In fact, Citizens United's holding that independent expenditures are not "corrupting" is not a statement of fact, but a statement of law. In this respect, it is similar to contractual doctrines that imply consent where consent is truly a fiction; or criminal doctrines that throw out confessions that were freely given, on the grounds that they were not probative because the accused was not properly 'Mirandized.'"

The explanation reveals a great deal.  Take the question of implied in law consent in contract law.  If a doctor gives emergency CPR to an unconscious patient, the doctor is entitled to payment for that service, even though the person needing aid could not consent.  Though this is sometimes referred to as consent "implied in law," in reality, it is the law excusing the lack of consent.  It is a fiction.

Similarly, the statement in CU that independent spending cannot corrupt is a fiction.  As I explained in this Michigan Law Review piece <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576> on the case, the statement both defies common sense and is in direct tension with the Court's holding in Caperton v. Massey.  As I argue in this piece, if 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 on this.  And when SCOTUS reverses, the disingenousness of this aspect of CU will be on full display for all.

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Rick Hasen
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UC Irvine School of Law
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