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.

How did the Montana Supreme Court try to get around the holding of Citizens United?  It took SCOTUS’s statement that independent spending cannot corrupt and pointed to evidence that such spending has in fact corrupted in Montana. . . .

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.

But the Court didn’t say that, because it would have faced even greater criticism than it already has.  So it dressed up its value judgment (no corruption “implied in law”) as a factual statement.

The Montana Supreme Court called SCOTUS on this.  And when SCOTUS reverses, the disingenousness of this aspect of CU will be on full display for all.

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