Facts? We Don’t Need No Stinking Facts: The Montana Supreme Court, SCOTUS, and Citizens United

On the Friday before New Year’s, when I was off the grid, the Montana Supreme Court decided Western Tradition Partnership, Inc. v. Attorney General. The opinion upholds 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 predicts the Court will hear the case and reverse, and Calvin Massey predicts a summary reversal.  (More analysis from SCOTUSBlog.)

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 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 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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