The state judges contended that Citizens United does not apply to Montana's anti-corruption measure — arguing, in effect, that the state should be able to determine how to regulate campaigns within its borders. Supporters of the state court's decision, according to Rick Hasen, a campaign finance expert at the University of California (Irvine) School of Law, have framed it as a defense of federalism, a tactic calibrated to appeal to the Supreme Court's majority conservative bloc.
Typically, conservatives rally around that type of argument, in determining how to educate the nation's children, say, or to provide health insurance for the needy. But in this case, they appear united in their conviction that the Montana court was dead wrong. "I'm a big believer in the 10th Amendment," said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation and a former member of the Federal Election Commission. "But the power and sovereignty of state government is limited by the Bill of Rights, just like the federal government's is."
Right-leaning legal analysts argue that the campaign finance case is inherently different from other issues that typically elicit cries of states' rights. Although conservatives contend that state autonomy should trump federal rule, they also say that the rights of citizens should supersede both. "Could a state like Massachusetts have an individual [insurance] mandate? That's a question not of rights under the Bill of Rights but rather of government powers," said Brad Smith, chairman of the Center for Competitive Politics and a former FEC chairman. "That's a fundamental difference."
Smith and his Republican brethren shouldn't waste much time worrying. Legal experts of all ideological stripes expect the Supreme Court to strike down the Montana law, maybe as early as this month, even though more than 20 states have filed briefs in support of Montana's position, contending that Citizens United in its short life has already had an observable, corrupting influence on national politics.
Ruling otherwise wouldn't necessarily require the Court to reconsider Citizens United wholesale; it could instead carve out some breathing room for states to regulate and still maintain the framework that allows unlimited contributions to outside political groups, corporations, and unions. But because the Court's composition has not changed since the decision came down, the justices are much more likely to choose the path of least resistance at their June 14 conference: They could merely vote to strike down the Montana law without a hearing.
Even though the possibility that the Court will revisit Citizens United is remote, some Democrats hold out hope that the high court will suddenly change direction. "I don't think the stakes could be higher," said Rep. Anna Eshoo, D-Calif. "We have gone back to the excesses of the second Gilded Age in political power."