Two Justices want Supreme Court to reconsider its Citizens United v. FEC decision

Posted by AzBlueMeanie:

The U.S. Supreme Court on Friday stayed a Montana Supreme Court decision which had upheld a state law against corporations spending on political campaigns. The stay will remain in effect until the Court takes final action on a coming appeal by the challengers to the law. The stay order is here.

Lyle Denniston at SCOTUSblog reports Montana campaign ruling on hold:

Justice Ruth Bader Ginsburg, joined by Justice Stephen G. Breyer, supported the [stay], but said that the case “will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United [v. Federal Election Commission should continue to hold sway.” 

[Their statement attacked the central foundation of the Citizens United ruling: its declaration that independent spending by corporations does not “give rise to corruption or the appearance of corruption.”   They cited Montana’s experience — decades of heavy corporate spending that seemingly did corrupt the state’s politics — as well as “experience elsewhere” since the Citizens United decision.   Those developments, their statement said, “make it exceedingly difficult to maintain” the key rationale for the Citizen United decision.]

It is unclear at this point whether any of the other Justices see the Montana case that way, and it would take five votes for the Court to modify or pare down the scope of the Citizen United decision.  Five votes were required to impose the stay, but that is no indication how the Justices would vote when a final decision was at hand.

Since the Court did not yet accept the case for full review, it appeared unlikely that the case could develop in time for a final ruling during the current Court Term — unless the Court could decide in coming weeks to summarily overturn the state court ruling.  

In the meantime, however, Friday’s order means, as a practical matter, that corporations in Montana at least temporarily could spend unlimited amounts of money from their internal treasuries for a few months during this year’s state political campaigns.   That is because, for now, the state cannot enforce its Corrupt Practices Act ban on corporations’ spending of internal funds.   The state Supreme Court had upheld that law on December 30.

[Three] Montana corporations [petitioned] the Justices for two forms of action: first, to issue a stay of the state court ruling until the Court could act on a coming petition for review, and, second, as an alternative, to treat the stay application as the petition itself, and summarily overturn the state court decision — that is, to nullify it without further briefing or oral argument.

The Court on Friday afternoon did only the first: it stayed the Montana ruling “pending the timely filing and disposition of a petition for a writ of certiorari.”   The challengers to the state ruling have 90 days — that is, until about the end of March — to file such a petition.

  It would take another six weeks or so for the case to be ready for the Court to decide whether to grant review or to deny it, or whether, at that point, to summarily overturn the lower court ruling.   Conceivably, a summary reversal could come during this Term, but, if that does not occur, the case very likely would go over to the next Term, starting October 1.  In that event, a final ruling would not come down until after the November elections.

But of course. How convenient.