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Court to Super PACs: Full Speed Ahead

By Garrett Epps, TAPPED - June 25, 2012

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As the ship drifts over the campaign-cash falls, the five captains decline a chance to reconsider the course.

During the 1980s and '90s, conservatives liked to talk about the "sagebrush rebellion," in which local officials in Western counties tried to take back federal land and escape the "tyranny" of federal land-management and environmental rules.  That rebellion still simmers. But today, the Supreme Court crushed, for the moment, a newer rebellion out of the West. 

In Western Tradition Partnership v. Bullock, decided last fall, the Montana Supreme Court blasted a different federal rule"”Citizens United v. Federal Election Commission, in which the Court held that the federal government could not regulate or restrict "independent" expenditures by individuals and corporations designed to affect the results of federal elections. That decision has set up the unseemly free-for-all that is federal campaign finance today, where the issue agenda is increasingly set by "independent" funders like American Crossroads and Sheldon Adelson.

In Western Tradition, the Montana Supreme Court declined to apply the Citizens United ruling to Montana state elections. In so doing, it blocked a planned media blitz by a shadowy (its own literature promised donors that "no politician, no bureaucrat,  and no radical environmentalist will ever know you helped make this program possible") anti-environmental organization. The Montana opinion zeroed in on the Supreme Court's edict in Citizens United that "independent" expenditures "do not give rise to corruption or the appearance of corruption." 

Maybe back East, the Montana Court said; but in Montana, with its unique history of corrupt domination by mining interests, the high court's "fact" was just, well, not a fact. It upheld the Montana state ban, over the dissent of a minority of judges who reluctantly argued that Citizens United, however badly decided, controlled the result.

When the advocacy group"”now retitled American Tradition Partnership"”petitioned the Supreme Court, the Justices put the Montana ruling on hold and invited briefing on whether to grant review.

Monday, in a per curiam opinion, the conservative majority of the Court granted cert. and, without scheduling oral argument, reversed 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 opinion stated.  "Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."

Justice Stephen Breyer wrote a dissent, joined by the other three moderate to liberal Justices"”Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. The dissent once again argues that Citizens United was wrongly decided. Montana's history illustrates that error, the dissent argues: "Montana's experience, like considerable experience elsewhere since the Court's decision in Citizens United, casts grave doubt on the Court's supposition that independent expenditures do not corrupt or appear to do so."

As we head over the Niagara falls of campaign cash that 2012 has become, the five captains of the ship have declined this chance to change course.  That was always the most likely result; but it nonetheless represents a missed opportunity for this Court to make law within a context of actual facts"”facts that its majority did not find necessary in Citizens United and did not consider worthy of discussion today.

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Garrett Epps is the legal affairs editor of The American Prospect. He is a former reporter for The Washington Post and a professor of law at the University of Baltimore. His most recent book is Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America.

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© 2011 by The American Prospect, Inc.

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