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Tuesday, June 26, 2012

ATM v. Bullock

Previous posts have discussed Citizens United. Wendy Kaminer writes at The Atlantic:
Advocates of campaign finance restrictions are not necessarily displeased by the Supreme Court's unsurprising, summary disposal of Montana's ban on independent corporate campaign expenditures. The brief unsigned order in ATM v Bullock, reversing a Montana Supreme Court decision that upheld the ban, will "further fuel" the drive for a constitutional amendment repealingCitizens United, according to, where hyperbole reigns:
"In the face of overwhelming evidence that the basic premise of the Citizens United ruling was wrong, five justices of the United States Supreme Court today said they do not care. They do not care about the facts."
But, as I've stressed repeatedly, attacks on Citizens United have routinely misrepresented the facts, using that much maligned decision as a catch-all for whatever democrats and progressives don't like about campaign finance. (Monica Youn of the Brennan Center practically acknowledged as much at the recent American Constitution Society convention, as she praised the political uses of the Citizens United meme.)
In fact, Citizens United struck down a ban on independent expenditures by unions and corporations. It did not address expenditures by super-rich individuals, which have dominated in 2012. Instead, it confirmed that "political speech does not lose First Amendment protection simply because its source is a corporation."

That's a principle members of incorporated, progressive advocacy groups should applaud, just as they should vigorously oppose the constitutional amendment promoted by, which would deny for profit and non-profit corporations fundamental First and Fourth Amendment protections. (I've critiqued the amendment strategy here.)
Montana law had denied corporations their First Amendment rights, and Montana's high court had defied the Citizens United ruling by upholding the law, which is why the Supreme Court slapped it down summarily, without hearing arguments. "The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does," ATM v Bullock rightly declares.
Bullock has another point of view:
“It is a sad day for our democracy and for those of us who still want to believe that the United States Supreme Court is anything more than another political body in Washington, D.C.
“I am very disappointed in what the U.S. Supreme Court’s decision means for state and local elections in Montana – and for our entire nation. One hundred years ago, Montanans passed an initiative to protect democracy, to give everyday people a voice that would no longer be silenced by a sea of corporate money. Their wisdom and the Corrupt Practices Act of 1912 have served Montana well for over a century, and could have provided the Court with the opportunity to revisit some of the fundamental fallacies underlying the Citizens United decision.
“I am proud to have led this fight for Montana and honored that 22 other states and Sens. Sheldon Whitehouse (D-R.I.) and John McCain (R-Ariz.) stood shoulder to shoulder with Montana. Despite this disappointing decision, the last word has not been spoken on the issue of how we preserve a viable democracy in which everyday people have a meaningful voice. History will show that it was Montanans and the Montana Supreme Court that understood the heart of this issue and stood on the side of ‘We the people.’”
While five of the Court’s justices voted to reverse the Montana Supreme Court’s decision, four justices – led by Justice Breyer – voted to deny ATP’s petition to rehear the case and instead uphold the Montana court’s decision. In the dissent, Justice Breyer wrote:
“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.”