In Montana Campaign-Finance Case, a Dissent in Support of Lawlessness

by Paul Sherman

The Montana Supreme Court made headlines late last year when it openly defied the U.S. Supreme Court’s ruling in Citizens United v. FEC. Although Citizens United declared that corporations and unions have a First Amendment right to spend money on political speech, the Montana court in Western Tradition Partnership, Inc. v. Bullock brazenly declared that the ruling did not apply in Big Sky Country.

The Montana court’s decision was a clear violation of the Supremacy Clause of the U.S. Constitution, which establishes that decisions of the U.S. Supreme Court interpreting the federal Constitution are the “supreme Law of the Land.” Moreover, because the Supreme Court’s ruling in Citizens United is only two-and-a-half years old and there has been no change in the Court’s membership, the Montana court could not possibly have thought that the Supreme Court had changed its mind about the correctness of Citizens United. Thus, the question wasn’t whether the Montana ruling would be reversed, but when and how.

After much anticipation, we have the answers. The Court’s decision — released under the title American Tradition Partnership, Inc. v. Bullock — came down this morning. Using a procedure known as “summary reversal,” the Court held that the Montana court’s error was so patent that the case could be decided without the necessity of full briefing and argument.

Proponents of campaign-finance “reform” are predictably outraged that the U.S. Supreme Court didn’t use this opportunity to revisit and reverse Citizens United. But the real outrage is not that the Supreme Court reaffirmed Citizens United, but that the vote to do so was not unanimous. Although the Montana court’s decision was in clear conflict with binding Supreme Court precedent, the vote to reverse was only 5–4.

#more#Dissenting from the ruling were the Court’s liberals, led by Justice Stephen Breyer. In a two-page opinion, Breyer argued that even if he were to accept the correctness of Citizens United, Montana should have the freedom to ignore that ruling because “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.” In other words, Montana and other states should be free to decide that the U.S. Supreme Court was wrong.

Justice Breyer’s claim that there is “considerable experience” demonstrating that Citizens United was wrongly decided ignores reality. Before Citizens United, a majority of states already allowed corporations and unions to spend unlimited amounts on political speech. Some, like Virginia and Utah, even permitted corporations and unions to make unlimited contributions directly to political candidates. Yet there is no evidence, either before or after Citizens United that these states are any more corrupt or less well governed than censorious states like Montana. 

But even if subsequent events had cast doubt on Citizens United, there is still no excuse for the Montana court to have ignored binding precedent. One doubts very much that Justice Breyer would show similar deference to the experience of the states if, two years from now, the supreme court of a border state were to ignore today’s ruling in Arizona v. United States, in which Justice Breyer joined a majority of the Court to invalidate an Arizona law designed to deter illegal immigration. And he would be right not to show deference to such a ruling. Since the U.S. Supreme Court’s 1816 ruling in Martin v. Hunter’s Lessee it has been considered blackletter law that the Supreme Court has final authority over state courts on matters of federal constitutional law. The reason for this is simple: If state supreme courts could willfully ignore rulings of the U.S. Supreme Court on matters of federal constitutional law, then the U.S. Constitution would mean different things, and guarantee different protection for individual rights, in different states.

Citizens United v. FECwas, and remains, a controversial case. But there should be nothing controversial about American Tradition Partnership, Inc. v. Bullock. The Supreme Court had spoken and a state court had ignored them. By refusing to unanimously reject that Montana court’s defiance, Justice Breyer’s dissent sets a dangerous precedent in support of lawlessness, one that has repercussions beyond the debate over campaign finance.

 Paul Sherman is an attorney at the Institute for Justice, which litigates campaign-finance cases nationwide.