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Friday, June 1, 2012

States' new version of the Alien and Sedition Acts

Has every politician in our country become a tyrant?! - Reggie

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?

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