The Cato Institute’s Trevor Burrus has a long post examining the
Montana Supreme Court’s recent decision in Western Tradition
Partnership v. Attorney General of Montana, where that court
essentially ignored the U.S. Supreme Court’s holding in
Citizens United v. FEC and instead voted to uphold the
state’s campaign finance regime:
[W]hat they were thinking is abundantly clear: they wanted to
register their dissent with Citizens United as well as
cling to a distant hope that the Supreme Court might review the
scope of their decision. Unfortunately for them, because of the
method in which they chose to do so, coupled with the recentness of
Citizens United and a blistering dissent that catalogs
their errors, the Supreme Court will not seriously examine their
reasoning.
The only remaining question is whether the Supremes will
unanimously vote to reverse the Montana court and thus resolutely
affirm the status of SCOTUS within the judicial hierarchy. There
remains a possibility, however, that one or more of the justices
who disagree with Citizens United (and recall that Justice
Kagan argued the case before the Court as solicitor general) will
use the case to voice their opposition to the decision. This would
be unwise, and it would only contribute to the perception of the
Court’s fractured nature. The justices should not be fractured on
condemning a lower court that blatantly ignores controlling
precedent.
Yet the opinion is still worth reading for anyone interested in
campaign finance law generally or in Citizens United
itself. Not only does the majority opinion make a woefully
inadequate attempt to distinguish Montana’s “unique” situation from
facts already addressed by the Supreme Court, but it highlights
fundamental differences in political philosophy that Citizens
United has brought to the surface.
Read the entire thing here.
Read Reason's coverage of Citizens United and its
discontents
here.
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