Jim Bopp Goes for Broke in Montana Campaign Finance Case, and Just Might Get It

[UPDATE: SCOTUSBlog reports that Justice Kennedy has already asked for a response from Montana, due Feb. 15.]

Today the James Madison Center filed this application for a stay of the Montana Supreme Court ruling upholding state law barring corporate independent spending in state elections.  As I have explained,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.)

The Corporations opposing the law have now filed the stay application, which would stay the Court’s ruling and allow corporate spending in Montana elections pending the filing and decision on a cert. petition to be filed in the Supreme Court.  But Bopp’s application does more than that: “The Corporations also request that this matter be referred to the Court, that this application be treated as a petition for a writ of certiorari, that the petition be granted, and that the Montana Supreme Court’s decision be summarily reversed. The lower court’s refusal to follow Citizens United is such an obvious, blatant disregard of its duty to follow this Court’s decisions that summary reversal is proper.”

Not only do I think that Bopp is likely to get his stay, he’s fairly likely to get his summary reversal.  Now the Court may not grant it now.  Justice Kennedy might issue a stay, and then there can be a summary reversal after the cert. petition is filed.  But I am very confident a summary reversal will be coming.

And when it does come, I very much hope that the four dissenters make the point I made in this post, about the hypocrisy of the Supreme Court’s decision in Citizens United:

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

…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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