The Supreme Court was not about to reconsider Citizens United

The New York Times’ editorial page was shocked and appalled that, a mere two years after the Citizens United decision, the Supreme Court dealt summarily with a plea by the state of Montana that it revisit the issue of corporate spending on political campaigns. Whatever you think of Citizens United, the idea that the high court would upend such a fresh precedent is fantastic. In upholding the Montana law, that state’s Supreme Court was cruising for a judicial bruising.

The doctrine of stare decisis is not absolute. Otherwise the Supreme Court couldn’t have overruled the 1896 Plessy vs. Ferguson decision allowing “separate but equal” public accommodations. But 58 years elapsed between Plessy and the court’s Brown vs. Board of Education school desegregation ruling.

I’m not saying that the court should wait that long to reconsider the question of whether independent expenditures by corporations during an election pose a sufficient danger of corruption to justify limits on their speech. But two years?

Granted, the Montana case involved a state law while Citizens United dealt with the McCain-Feingold law passed by Congress. But the 1990 decision overruled by Citizens United, Austin vs. Michigan Chamber of Commerce, also involved a state law, and, anyway, states must abide by the Supreme Court’s interpretation of the 1st Amendment. As the court put it in an unsigned opinion overturning the Montana Supreme Court: “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.” (The New York Times called this eminently predictable conclusion “dismissive.”)


Yes, Montana had a bit more of an argument than “maybe you were wrong two years ago.” Defenders of the Montana law insisted that historical circumstances peculiar to that state -- influence-buying by copper interests in the early 20th century -- undermined the conclusion in Citizens United that independent political advertising doesn’t pose a threat of corruption. But there is no way the justices are going to adopt a state-by-state approach to the 1st Amendment.

Citizens United (as The Times has said in editorials) was an overreach. The court could have decided the case, which involved a nasty documentary about Hillary Rodham Clinton, without revisiting the question of whether the law can prohibit corporations (and unions) from political spending. On the other hand, the ruling did not make it possible for sugar daddies like casino magnate Sheldon Adelson to spend their own money to help Mitt Romney capture the White House. Citizens United (and a follow-up federal appeals court decision) may have given rise to super PACs, but since 1976 the law has allowed billionaires to spend oodles of their own money on independent political ads. They don’t need a middleman.

Whatever you think of Citizens United, trying to undo it after two years was a silly exercise. It reminded me of Congress’ decision in 1989 to pass a Flag Protection Act to force the court to reconsider its decision that same year to strike down a state law against burning the American flag. It didn’t.

And the majority in Citizens United was never going to revisit its unpopular holding.


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