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Will SCOTUS Stamp Out Montana's Constitutional Mischief?

By Robyn Hagan Cain on May 01, 2012 | Last updated on March 21, 2019

Citizens United is criticizing the Montana Supreme Court for its Western Tradition Partnership v. Attorney General ruling.

Last December, the popularly-elected Montana Supreme Court held in its 5-2 Western Tradition decision that the state had a compelling interest in continuing to enforce the state’s Corrupt Practices Act. Montana voters approved the Act, which limits/bans corporate campaign expenditures, in 1912.

At the time the decision came out, one of the dissenters remarked that the U.S. Supreme Court would strike down the opinion without a second thought because the ruling contradicts the U.S. Supreme Court’s Citizens United decision.

Citizens United -- here, we mean the group, not the case -- clearly agreed, writing in an amicus brief that the Montana Supreme Court had engaged in "constitutional mischief" and asking the Nine to issue a summary ruling reversing the Montana decision, SCOTUSblog reports.

But is a summary ruling likely?

In February, the Supreme Court stayed the Montana decision, (now called American Tradition Partnership v. Bullock), pending a petition for writ of certiorari. Justice Ginsburg, joined by Justice Breyer, issued a statement supporting the stay in light of stare decisis, but expressing an interest in re-examining Citizens United.

Montana's experience, and experience elsewhere since this Court's decision in Citizens United ... make it exceedingly difficult to maintain that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption." A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway.

In other words, Justices Ginsburg and Breyer -- both whom dissented from Citizens United, are hoping that one of the five justices in the majority is experiencing buyer's remorse now that we're in heading into the presidential election.

And the most likely change of heart would come from Justice Kennedy, who not only authored the original opinion, but imposed the stay of the Montana Supreme Court's opinion.

SCOTUSblog notes that it will take four justices to grant certiorari in American Tradition Partnership v. Bullock and five for summary ruling. The Citizens United dissenters have the votes to re-examine the issue. The question now is if Justice Kennedy will vote for a summary ruling, or if he'll become the swing vote in American Tradition Partnership.

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