June 26, 2012

Yesterday the Supreme Court disposed of the challenge to Citizens United v. Federal Election Commission raised by Montana, holding that a statute of that state banning corporate spending on elections is, like the federal statute in Citizens United , unconstitutional. The Court, in its per curiam (you aren’t worth a signed statement) opinion, provided a bare description of the subject of the dispute: "A Montana state law provides that a ‘corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party’.” However, that was it; there was no analysis, but merely a dismissive conclusion: "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. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."

The reference to Article VI was an unnecessary and irrelevant flourish, or an ironic one, depending on how cynical is one’s point of view. That clause states that "This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." I doubt that Montana argued otherwise; the issue was, or ought to have been, whether the Constitution, specifically the First Amendment, renders the Montana statute void. The Court apparently believes that its muddled opinion in Citizens United sufficiently explained that result. It didn’t, so what the Court really said to Montana, and to the rest of us, is that the unpersuasive opinion of five of its members is the Law of the Land. We have spoken: don’t expect any further explanation.

There were four dissents, as there were in Citizens United . Too many important issues have been decided by a margin of five to four, which will continue to be the pattern given the ideological split on the Court: four liberals and four conservatives. As that split is so predictable, the swing vote, currently that of Justice Kennedy, is decisive. An article by Jonathan Turley in The Washington Post on June 22 pointed out the effect of that situation: "Before Justice Anthony Kennedy was the primary swing vote, Justice Sandra Day O’Connor was often the deciding vote and for years shaped the law according to her shifting views on subjects from the death penalty to privacy." In other words, we have to no small extent, a Supreme Court of one. That may be the result in the most important pending matter, the health care act.