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A Victory for Free Speech



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Today the Supreme Court of the United States summarily reversed an opinion of the Montana Supreme Court allowing Montana’s legislature to ban political expenditures paid for by corporations. Does that Montana opinion sound contrary to everything you know about the recent landmark holding in Citizens United v. FEC? It should. In reversing the Montana decision, the nation’s high court easily quelled a judicial mutiny — in only 20 lines of text:

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 [citation omitted]. The question presented in this case is whether the holding applies to the Montana state law. There can be no serious doubt that it does.  See U.S. Const., Art. VI, cl. 2.

The authority the Court points to is that little provision in Article Six saying, “This Constitution  . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”

Does the opinion in American Tradition Partnership, Inc. v. Bullock stand for anything other than the Supremacy Clause? Yes, it does. Those 20 lines now make two conclusions unmistakable. First, communications made independent of candidates and political-party committees pose no threat of corruption as a matter of law, not case-by-case adjudication. The Montana litigants and their “reformer” allies hoped to reopen the question on factual grounds, deposing everyone and subpoenaing everything, until they could get the Court to blanch at — what reformers have called — all the apparent corruption. The second conclusion is related: The states are not free to create legislative records to ban independent political expenditures by corporations. The conclusions should end the turmoil for awhile.

The question is, how did this case get even this far? The Montana court should have known better. The answer likely lies in a theory held by modern-day progressives that the high court will be constrained in its rulings by the pressures of mainstream national opinion. Progressives no doubt calculated that the best way to get their preferred decision from the Supreme Court on this issue was to have the public on their side. This theory is the reason you see op-eds by Katrina vanden Heuvel, Jeffrey Rosen, and Dahlia Lithwick taking the Supreme Court to task for nearly any reason in advance of a pending opinion, most notably associational speech cases like Citizens United and health care. To better understand the theory, and its flawed underpinnings in the wake of today’s opinion, skim this summary by Professor Richard Pildes.

The dissent, written by Justice Breyer and joined by all three of his liberal colleagues, makes clear they would appreciate having another leftist on the Court to join them: “Were the matter up to me,” Breyer wrote for his brethren, “I would vote to grant the petition for certiorari to reconsider Citizens United.” 

Just more evidence, if any were needed, that the stakes in this November’s elections could not be higher.

— Stephen M. Hoersting is an attorney with DB Capitol Strategies and President of the Institute for Individualism.



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