American Tradition Partnership v. Bullock: What To Do About Montana?

Since Citizens United was decided in 2010, there have been many attempts at predicting the future of campaign finance law.   A number of laws and regulations have been introduced, some of which passed  (SEC Rule 275.206(4)-5) and some of which are still in a holding pattern (the DISCLOSE Act, the Shareholder Protection Act and the Obama Executive Order on Federal Contractors).   And courts around the country have dealt with a number of cases, some bolstering 1st Amendment freedoms (Arizona Free Enterprise Club’s Freedom Club PAC, et al. v. Bennett, Secretary of State of Arizona, et al) and some bolstering reform (Van Hollen v. FEC).

Now comes a case that is currently in the hands of the Supreme Court and that some are calling Citizens United II: American Tradition Partnership v. Bullock – otherwise known as the Montana campaign finance case.   The Court’s electronic docket shows the case in on for the Justice’s private conference on June 14, 2012.

This past weekend the National Asian Pacific American Bar Association (NAPABA) held a Super Regional Conference in Atlantic City and I had the pleasure of being a speaker at a panel, the topic of which was “Hot Topics in Supreme Court Jurisprudence.” Below is a portion of my remarks, which discussed Bullock.

In Citizens United, the Court distinguished between independent expenditures and direct corporate contributions by pointing to the Buckley Court’s rationale that “the absence of prearrangement and coordination . . .alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”  But Justice Stevens in dissent pointed out a significant counterpoint that undermined the majority’s rationale – reality.   And this reality has been illuminated in this election year with front-page articles in newspapers that have introduced the American public to SuperPACs, Sheldon Adelson and coordination.

Indeed, Justice Ginsburg’s statement (joined by Justice Breyer) “respecting the grant of the stay” in Bullock can be read in the same light:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.”  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.  Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, I vote to grant the stay.

Justice Ginsburg seems to be inviting a direct challenge to the majority’s fundamental premise in Citizens United – the distinction between independent expenditures and direct expenditures – rather than seeking to distinguish the Montana statute from the provision struck down in Citizens United.

All this being said, will the Court dash our hopes and summarily reverse Bullock? Likely.   After all, here’s a state Supreme Court essentially refusing to follow a recent decision by the highest court in the land.  Moreover, it is highly unlikely that Justice Kennedy – who wrote the majority opinion in Citizens United – would join Justices Ginsburg, Breyer and likely Kagan and Sotomayor in reversing Citizens United.  So why not just summarily reverse the decision? And that’s what they will likely do with Montana.