States’ new version of the Alien and Sedition Acts
Citizens in 22 states should be alarmed. An amicus brief filed by those states’ attorneys general indicates they do not believe in robust First Amendment rights. Instead, they urge the U.S. Supreme Court to let state governments censor political speech and political activity.
That is, in essence, the position taken in their embarrassing brief just filed in American Tradition Partnership v Bullock, a case in which the Montana Supreme Court brazenly ignored the U.S. Supreme Court’s decision in Citizens United. The Montana court reinstated a ban on independent political expenditures by corporations-a ban that a lower court had correctly thrown out as unconstitutional following the Citizens United ruling.
Trying to differentiate its state law from the federal ban, the Montana Supreme Court issued a decision that is a marvel of deceptive reasoning. The court basically defied the Supreme Court. As the dissenting judge, James Nelson, said, “the Supreme Court has spoken,” and Montana’s “judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling-in the same way that this Court demands obedience to its rulings, like them or not.” But the Montana court refused to render that obedience.
When American Tradition Partnerships petitioned the U.S. Supreme Court to overturn the erroneous Montana decision, Justice Anthony Kennedy, author of the majority opinion in Citizens United, issued a stay of the Montana court’s decision while the Supreme Court decides whether to accept the Montana case for review. Led by Eric Schneiderman, New York’s attorney general, the attorneys general of 22 states filed an amicus brief opposing the petition and asking the Supreme Court to let the Montana decision stand.
The states’ brief is just as deceptive as the decision by the Montana Supreme Court. It makes the preposterous argument that the Montana court’s outright defiance of the Supreme Court “does not squarely conflict with the rulings of this Court” in Citizens United since the Montana ban applies to state elections. But the Citizens United ruling did not just hold that a federal ban on independent political expenditures violated the First Amendment. It also overturned Austin v. Michigan Chamber of Commerce, a 1990 Supreme Court decision that upheld Michigan’s ban on independent political expenditures by corporations in state elections. How much clearer could the Supreme Court have been?
The attorneys’ general brief reveals just how beholden they are to unions. The Montana ban applies only to corporations, and the attorneys general assert that states “face a much greater risk of domination of their elections by nonresident corporations” than the federal government does in federal elections. Note the complete nonconcern with “domination” by unions, which spend enormous amounts of money on elections. The list of PACs that raise and spend the most money is dominated by unions.
The rest of the states’ brief rehashes the same losing arguments made by former Solicitor General Elena Kagan when she argued Citizens United before the Court. This includes the phony claim that the Montana law “does not operate as a ban on corporate speech” because corporations can still form PACs that can engage in political speech. When that identical argument was made in Citizens United, the court said that it was “a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak.” That is because PACs are extremely burdensome, expensive alternatives subject to extensive regulations that chill protected political speech.
So which attorneys general should be in the Bill of Rights hall of shame? The disgraceful brief was signed by the attorneys general of Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, New York, North Carolina, Rhode Island, Utah, Vermont, Washington, West Virginia, and the District of Columbia.
The Supreme Court should reject the discredited-and discreditable-views asserted by these attorneys general and issue a summary reversal of the Montana court. To do otherwise would accept state censorship of political speech, a concept wholly alien to the First Amendment. Under the incorporation doctrine of the 14th Amendment, the First Amendment prohibits censorship by state governments as well as the federal government. Too bad these attorneys general didn’t learn that basic fact in the Constitutional Law classes offered in their first year in law school.