Wednesday, June 27, 2012

Maybe summary reversal of the Montana Supreme Court was for our benefit.

Seventh Circuit Court of Appeals Judge Richard Posner has a different perspective on the Supreme Court's summary reversal of the Montana Supreme Court's campaign finance decision.  His thoughts are at the end of this post about Miller v. Alabama.

Judge Posner writes:
I would like to comment very briefly on the Montana campaign contributions decision. I think the court was right to do what it did. I don't say this because I agree with the Citizens United decision. I don't. But a presidential campaign is not the right time to revisit the issue. The prospect that the court might overrule the decision, or more likely modify it, would create enormous uncertainty at a time when the voters' and the politicians' circuits are already overloaded
I have not thought of this before.  Obviously, Judge Posner does not know whether the 5 justices who voted to summarily reverse the Montana Supreme Court were thinking about this issue.    But it is an interesting thought.  Presumably in light of the summary reversal no state is going to try to uphold a similar spending restriction and thus the presidential candidates and the PACs that support them all understand what type of spending is allowed.  If the Supreme Court had simply set the case for argument next term (which does not begin until October so no decision would be likely until after the election), it would have been unclear whether a state could limit the holding of Citizens United

On the other hand, given Mr. Torvik's point that the five justices who support Citizens United think that as a matter of law unlimited independent corporate expenditures on political messages do not create the appearance of corruption (a point on which they are surely wrong), it feels like Judge Posner is being too charitable to the Supreme Court.  Remember that for the Supreme Court to revisit the issue, someone has to appeal.  A summary reversal sends the message that such an appeal will be fruitless.  Perhaps some appellate lawyers will see this the same way that Judge Posner does and appeal to the Supreme Court the next time a state supreme court strikes down one of its campaign finance laws.  But that seems like a bit of a stretch.

1 comment:

Comments on posts older than 30 days are moderated because almost all of those comments are spam.