Civil Discourse Now

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Montana slams "Citizens United," part 3: will the case withstand U.S. Supreme Court scrutiny?

   Odds are very good that Western Partnership will be taken up on a petition for writ of certiorari to the United States Supreme Court. Whether the Montana Supreme Court’s holding will survive there is a bit like speculating whether, once in the NCAA tournament, Indiana University will fare well.

   The justices of the Montana Supreme Court are aware of the possibilities of course. Chief Justice McGrath wrote for the Montana Court fully aware of the possibilities. That is why distinctions between Citizens United and Western Tradition Partnership ("WTP") are important to consider.

   First, as I noted previously in my blog on Citizens United, in his dissent:

"Justice Stevens noted in ‘its motion for summary judgment ... Citizens United expressly abandoned its facial challenge (citation omitted) and the parties stipulated to the dismissal of that claim ...’ Id. The facial challenge to the statute was not argued at the District Court or at the Court of Appeals. The facial challenge was not even mentioned in Citizens United’s merits briefing. 130 S.Ct. at 932. ...

  "The parties had settled, by stipulation to dismiss, the issue upon which the Supreme Court issued its decision. Justice Stevens notes, correctly, in his dissent, this not only was a violation of the mootness doctrine:

         By reinstating a claim that Citizens United abandoned, the Court gives it a perverse    litigating advantage over its   adversary, which was deprived of the opportunity to gather    and present information necessary to its rebuttal.

130 S.Ct. 933, n. 4. Basic fairness was discarded as the Court addressed a question for which the Federal Election Commission, because of the parties’ stipulation, had not developed a record to support its position. That is an important consideration at the appellate level. If a fact is not contained in the record of proceedings below, it does not exist for purposes of the case. As an example, in a murder case a defendant could not argue error as to a ruling on his or her defense of alibi if the record lacked evidence or other means by which the appellate court could consider the issue. The FEC was at a disadvantage because the Court had asked, in the twelfth hour, to consider a question stipulated out at the District Court."

By contrast, the Montana Supreme Court in WTP considered dueling motions for summary judgment in which the record was more fully—and fairly—developed on the issue in question.

   Second, the WTP Court distinguishes its case and Citizens United:

  Citizens United does not compel a conclusions that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional. Rather, applying the principles enunciated in Citizens United, it is clear that Montana has a compelling interest to impose the challenged rationally-tailored statutory restrictions.... 

2011 WL 6888567 at 15.

   Third, today we have, as a lesson in history, the Iowa caucuses as what Citizens United brought to fruition. Mitt Romney’s "official" ads were positive where as the ads run by the 501(c)(4) allied with him went on the attack against Newt Gingrich. Romney’s strategy was a mixture of sleight-of-hand, intellectual cowardice, and cynicism toward the intelligence of the Iowa voter.

  I must once more conclude, but renew my question: What have the people gained by anonymity of donors being protected? As I said yesterday, if corporations are to be treated as living human beings, and to have conferred upon them all of the rights of living human beings, do human beings now get to be treated as corporations? 

   As I said yesterday, on this weekend’s show,  "Civil Discourse Now," our guests will be Nicolas Martin, who has blogged on the topic quite a bit and disagrees with my position. Nicolas is "a long-time libertarian. He is the faithful serf of his nine-year-old daughter and a funeral photographer. He can be reached at elegy-at-martinworld-dot-com." Also we shall have Jeff Cox, Indianapolis attorney and Ohio State alum, who is quick to point out the full name of his alma mater is The Ohio State University. We do the Show at 11 a.m. on Saturday at Big Hat Books, 6510 Cornell, in Broad Ripple. The public is welcome to attend. If anyone wants to rattle Jeff, wear the maize-and-blue of the University of Michigan.

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