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Monday, June 25, 2012

Citizens United Ruling Applied to States

On the basis of the supremacy clause (Art. 6, clause 2) of the U.S. Constitution, the U.S. Supreme Court ruled 5 to 4 on June 25, 2012 against Montana’s Supreme Court decision that had upheld a Montana law that stipulated that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” According to the majority on the U.S. Court, that court had already struck down a similar federal law in Citizens United by holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” The Court had concluded that the federal government did not have a compelling interest in restricting that protection for corporations to prevent corruption.

Regarding the Court’s compelling state interest rationale, it is not evident that the reasoning in Citizens United that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” empirically trumps the finding of the Montana Supreme Court that corporate political expenditures have led to corruption in Montana. As Justice Breyer writes in his dissent, “even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Supreme Court’s finding.” It is possible, in other words, that Montana’s government has a compelling interest whereas Congress does not. According to the New York Times, the “Montana Supreme Court had ruled that the state’s distinctive history and characteristics warranted a departure from the principles announced in Citizens United.” In other words, the empire-scale of the American union ought to have gone into the Court’s reasoning.

Like the E.U., the U.S. extends across a continent. Both unions are of such a scale as to be reckoned as empires in themselves (i.e., even without considering their influence abroad). Their respective comprising republics can be expected to have distinct cultures.  For example, the relationship between business and society in Montana might be very different from that which is the case in Delaware. Hence, states have different incorporation laws as well as approaches to constraining corporations.

To impose a “one size fits all” empirical assumption in terms of a government’s interest in forestalling or reducing corruption not only invites factual error, but also treats an empire as if it were merely a republic or kingdom therein. Therefore, in applying the first amendment to a particular state’s empirical circumstances, the federal Court should beware of applying the assumption of a single U.S.-wide empirical condition in lieu of the “facts on the ground.” More generally, presuming a single empirical condition across these United States can be reckoned as one of the means by which judicial (and political) consolidation has made such inroads at the expense of federalism. Over time, the further consolidating chokes the combination, which can be expected to eventually either collapse from the weight of its center or split apart from the built-up pressure of the inherent diversity of the member states.


Adam Liptak, “Supreme Court Declines to Revisit CitizensUnited,” The New York Times, June 25, 2012.