Some national legal experts believe the U.S. Supreme Court almost surely will have the final word on the recent Montana Supreme Court decision that reinstated the state’s century-old ban on corporate spending for or against state political candidates.
American Tradition Partnership, the lead plaintiff challenging Montana’s law, is considering its legal options but has not yet announced its specific plans, Donald Ferguson, executive director of the Washington, D.C.-based group, has said. The group was known as Western Tradition Partnership when it challenged the Montana law.
On Friday, the Montana Supreme Court, in a 5-2 ruling, overturned a state District Court decision that had struck down Montana’s 1912 voter-passed law prohibiting corporate contributions in state political campaigns. District Judge Jeffrey Sherlock had declared the Montana law unconstitutional after the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission.
“It’s a pretty safe bet the plaintiffs will seek review in the U.S. Supreme Court,” said Paul Ryan, attorney for the Campaign Legal Center, a nonpartisan, nonprofit Washington group that advocates strong campaign finance laws.
Ryan said he supports the Montana Supreme Court ruling and is highly critical of the 5-4 U.S. Supreme Court’s Citizens United decision, which cleared the way for corporations to spend money in political campaigns as part of their free speech rights.
“We like the Montana Supreme Court’s decision,” Ryan said in a telephone interview. “We think the U.S. Supreme Court missed the forest for the trees, and the Montana Supreme Court saw the forest and ruled appropriately.
“I think the (U.S.) Supreme Court got Citizens United wrong, but they ruled the way they ruled. I’m not confident the five justices are ready to reverse their own decision two years ago.”
Eugene Volokh, a UCLA law professor, in an article on the case on his blog, the Volokh Conspiracy, agreed the Montana case likely will reach the nation’s highest court.
“My sense is that the disagreement with Citizens United is so striking that it is likely that the (U.S.) Supreme Court will agree to hear the case, and will reverse the Montana Supreme Court’s decision,” he wrote.
On Friday, John Bonifaz, director of Free Speech for People, a national group trying to reverse the Citizens United decision, also suggested the Montana ruling might wind up before the U.S. Supreme Court.
“With this ruling, the Montana Supreme Court now sets up the first test case for the U.S. Supreme Court to revisit its Citizens United decision, a decision which poses a direct and serious threat to our democracy,” Bonifaz said in a statement to the Associated Press.
Ryan, the attorney for the Campaign Legal Center, said the “ball’s in the court” of the American Tradition Partnership to determine its next step legally.
In the short term, Ryan said, the partnership could ask the Montana Supreme Court to stay its decision, which would temporarily suspend the enforcement of the state law again. Since the Montana court would be unlikely to grant a stay, or delay, the group could ask the U.S. Supreme Court to put on hold the enforcement of the Montana law until it rules on an appeal.
“That’s generally a pretty extraordinary remedy,” Ryan said.
The U.S. Supreme Court normally would grant such a motion only if it were a pressing matter in terms of time, such as an appeal by a prisoner facing the death penalty soon.
More likely, Ryan said, Western Tradition Partnership would file a petition for a writ of certiorari with the U.S. Supreme Court asking it to consider an appeal on the Montana ruling. The partnership has 90 days to make such a filing, and the state would have 30 days for rebuttal after that.
At the earliest, the U.S. Supreme Court could have an internal conference in mid-May to decide whether to take the appeal, Ryan estimated. It would take only four of the nine justices to grant the petition to accept the case. If that happened, it would set up a schedule for both sides to file briefs this summer and the court to schedule oral arguments for this fall, he said.
“That would kick the can most likely until after Montana’s 2012 election,” Ryan said.
Those challenging the Montana law also could ask the U.S. Supreme Court to make summary reversal of the Montana Supreme Court decision as part of the request to hear the appeal.
If the same five justices that ruled in the majority in Citizens United conclude the Montana case is “a slam dunk,” they could summarily reverse without having to publish an opinion, Ryan said.
Or, he said, if one of the five U.S. Supreme Court justices in the majority in the Citizens United case believes the Montana case is different or if the majority has regrets over its 2010 decision, it could summarily affirm the Montana decision.