Late last year, the Montana Supreme Court handed down a decision that was widely viewed as openly defying the U.S. Supreme Court’s election-buying decision in Citizens United. Last night, the U.S. Supremes issued an entirely unsurprising order staying that decision. As a result, Montana will now face the same epidemic of corporate and other wealthy donor money that infected the other 49 states in the wake of the Citizens United decision.
There are, however, two possible silver linings in last night’s decision. The first is that the Supreme Court did not agree to the corporate parties’ request in this case to simply reverse the Montana decision without a full hearing or even necessarily an opinion. Yesterday’s order suspends the Montana decision “pending the timely filing and disposition of a petition for a writ of certiorari,” meaning that there is still a possibility that the Court could give the case a full hearing that would almost certainly raise the question of whether Citizens United should be overruled.
The second silver lining is a separate statement from Justices Ginsburg and Breyer attached to yesterday’s order:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” 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. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, I vote to grant the stay.
This statement suggests that there are at least two votes on the Supreme Court eager to reconsider one of the modern Supreme Court’s most erroneous opinions just two years after it was decided. Such a swift reversal would very unusual, if not entirely unprecedented. In light of the massive influx of corporate and wealthy donor money flooding our democracy and threatening to elect a generation of candidates personally beholden to wealthy benefactors, however, this kind of swift admission of error by the justices is entirely necessary.