Citizens United and the Supreme Court's failure to lead

us-supreme-court.jpgThe Supreme Court building is seen at dawn in this file photo.

By Ian J. Drake

One of the most important jobs of the U.S. Supreme Court is to create clarity, certainty and predictability regarding the meaning of the law. The public needs to know what acts are legal and illegal, and why. Also, the court often is the chief expositor of the U.S. Constitution. If the court fails to explain its decisions, then it fails to fulfill its function in our constitutional system.

A campaign finance case from the past term is an example of such a failure, and it’s important because it can affect whether and how states will enforce their campaign finance laws between now and the elections in November.

In June, in American Tradition Partnership vs. Bullock, the Supreme Court issued a one-page opinion, applying its controversial 2010 decision in Citizens United, which protected corporate and union spending on political advertising under. Bullock arose out of a Montana law that prohibited corporations from spending money in connection with a candidate or political committee. The case involved for-profit and nonprofit corporations seeking to spend money in state races.

The Montana Supreme Court had upheld the law because of Montana’s history of corruption, which the state court said was a “compelling interest” in restricting corporate spending. The U.S. Supreme Court, without holding any oral arguments, issued a terse opinion declaring the Montana law unconstitutional. The court gave no explanation for its decision. Rather, it simply pointed to Citizens United and claimed “there can be no serious doubt that” Citizens United applied to the Montana law.

In Citizens United, the court issued a 57-page opinion, striking down a portion of the federal McCain-Feingold campaign finance law that prohibited political advertising by corporations. The court held that the First Amendment’s free-speech clause allows for-profit and nonprofit corporations and unions to spend freely on political ads.

Citizens United was a nonprofit that wanted to broadcast a documentary critical of then-candidate Hillary Clinton and run ads promoting the film. The Supreme Court held that banning such advertising is banning speech that is an “essential mechanism of democracy.” The court explained the constitution prohibits the government from distinguishing between individual and corporate speech.

By contrast, the Montana law prohibited “expenditures” by corporations, which can apply to more activities than advertising. The Montana Supreme Court agreed the state law affected speech. Yet, the Montana court reasoned that the state had a compelling reason for restricting speech.

However, the meaning of “expenditures” can be broad, including not only advertising but also the broad concept of providing “anything of value” to a campaign or party. This can include party-building activities or “grassroots” spending, such as purchasing or leasing equipment and services for campaigns, making buttons and bumper stickers, leasing office space, or printing signs and brochures.

U.S. Justice Stephen Breyer, who filed a dissent in the Montana case, contended that Montana’s Supreme Court had shown that corporate expenditures in Montana had led to “corruption or the appearance of corruption” and were justified. Yet, Breyer lamented that he does not think the court will change its mind on protecting corporate speech any time soon.

In striking down the Montana law, the court is actively policing what it views as state supreme courts that ignore Citizens United. But the court has its work cut out for it. More than 20 states’ attorneys general (including the District of Columbia’s) urged the court to uphold the Montana law, arguing that corporate and union expenditures lead to corruption.

The Montana case is important because the court’s failure to explain its decision creates uncertainty. The court often issues long opinions explaining its reasoning so that judges, lawyers and citizens alike can understand why the court reached a particular result.

But the court’s refusal to explain its decision on Montana’s law creates greater uncertainty for lower courts, state legislatures and those who run political campaigns, and it will invite many more challenges to other states’ campaign finance laws.

Ian J. Drake is an assistant professor of political science and law at Montclair State University.

Related: Askin: Montana Supreme Court throws down gauntlet in Citizens United decision