Does the First Amendment Mean Something DIfferent in Montana Where Independent Spending Has Led to Corruption

January 2nd, 2012

Rick Hasen points out a potential wrinkle in Citizens United where the Court’s holding–that independent expenditures cannot corrupt–was a a legal fiction, and meant to be a statement of law, rather than a statement of fact.


Similarly, the statement in CU that independent spending cannot corrupt is a fiction.  As I explained in thisMichigan Law Review piece on the case, the statement both defies common sense and is in direct tension with the Court’s holding in Caperton v. Massey.  As I argue in this piece, if the Court were being honest inCitizens United, it would have said something like:  We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.



Should the First Amendment mean something else in Montana because there, independent expenditures *have* led to corruption?