Three Montana corporations challenged the law on the grounds that it flies in the face of the Citizens United ruling. But the Montana Supreme Court in December rejected that challenge, throwing the ball to the Supreme Court. In February, justices stayed the Montana ruling so they could consider whether to take up the case.
In issuing the stay, Justice Ruth Bader Ginsburg stirred speculation that at least some justices believe the high court should revisit Citizens United. “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,” Ginsburg wrote in a statement, joined by Justice Stephen Breyer.
The high court now faces three options. One, it could deny the cert petition outright, allowing the state Supreme Court ruling — and the Montana corporate spending ban — to stand. Few expect the Supreme Court to take that route, as it would effectively invite other states to pursue additional corporate spending bans at odds with Citizens United.
Two, the high court could summarily reverse the state Supreme Court’s ruling, as the Montana law’s challengers request.
Three, the Supreme Court could take the case up for argument, inviting another round of amicus briefs, and that could draw national attention on the scale of the constitutional challenge to President Barack Obama’s health care law. A decision is expected by the end of June.
In their amicus brief, McCain and Whitehouse argue that the high court should either deny cert and let the Montana corporate spending ban stand or take up the case for full review. Another amicus brief filed this week by the Brennan Center for Justice, and signed by several prominent constitutional scholars, makes a similar case.
The unrestricted super PACs that have emerged in the wake of the Citizens United ruling have spent close to $100 million in this election, the Brennan Center brief notes, much of it raised in donations of $1 million or more from wealthy individuals such as casino magnate Sheldon Adelson, who with his family gave $20 million to a super PAC backing former Speaker Newt Gingrich (R-Ga.).
Other groups that have filed briefs before the Supreme Court include Citizens United, the conservative group that prompted the court’s 2010 ruling to begin with and that sided with those challenging the Montana law, and the Campaign Legal Center, which was joined by more than a dozen civil rights, legal and watchdog organizations and sided with Montana.