Tuesday, January 31, 2012

Montana Supreme Court Flouts Citizens United

Will It Be Reversed? Montana Supreme Court Flouts Citizens United




Weekend Edition January 27-29, 2012




On December 30, 2011, the Montana Supreme Court ruled

that the state’s one-hundred-year-old ban on corporate

political contributions should remain in full force and

effect, notwithstanding the January 21, 2010 ruling of

the U.S. Supreme Court in Citizens United v. FEC.  (As

readers may recall, Citizens United was the

controversial decision holding that corporate campaign

contributions are protected as political speech under

the First Amendment of the U.S. Constitution.)


Supporters of the Citizens United ruling think that the

Montana justices simply don’t know how to read the law.

 On the other hand, those who want to overturn Citizens

United and thus to reverse its corrosive impact, which

allows corporate money to be spent on partisan

politics have applauded the Montana high court’s

action. They believe that Montana’s high court got it right.


No one knows for certain, though, which side will ultimately prevail.


Montana’s Claimed Exception To Citizens United


The Montana Supreme Court (MSC)’s opinion demonstrated

that it was fully cognizant of the Citizens United

ruling.  Yet the MSC majority found that the state

statute at issue, the Montana Corrupt Practices Act,

with its ban on corporate contributions was importantly

different from the ban on corporate campaign money that

had been at issue in Citizens United.


Notably, the MSC opinion, Western Tradition

Partnership, Inc v. Attorney General of Montana, was

closely and carefully considered by the state’s high

court, and was fully briefed by a number of amici from

national organizations, both for and against Citizens United.


The MSC held that when ruling in Citizens United, the

U.S. Supreme Court had found “compelling interest

for the Federal restrictions on corporate political

speech,” and so had concluded that the federal statue

at issue there was “impermissible contravention of

the First Amendment.”  


Stated a bit differently, the MSC opinion concludes

that, under Citizens United, (1) “the highest level of

scrutiny” must be applied to any restrictions on

speech, and (2) to impose such restrictions government

must “demonstrate a compelling interest.”  


But the MSC added that when and if there is evidence

that passes this high level of scrutiny and proves that

a compelling interest has been shown, then restrictions

can be imposed on political speech.  The MSC notes,

moreover, that the level of evidence that is needed to

satisfy heightened scrutiny will vary with the ˜novelty

and plausibility of the justification raised.” (Citation omitted.)


In short, the MSC believed it has found an exception to

Citizens United, one that allows Montana to bar all

corporate money in politics, when there is evidence of

a compelling state interest to justify such action.


Montana’s Compelling State Interest for Barring

Corporate Money in Montana Elections


The four U.S. Supreme Court justices who dissented in

Citizens United concluded that, based on the majority’s

opinion, there was no situation in which corporate

money could be excluded by the government in political

campaigns.  The MSC opinion, however, reaches a very

different conclusion.


The MSC majority reasons as follows: “The Dissents

assert that Citizens United holds unequivocally that no

sufficient government interest justifies limits on

political speech. We disagree. The [U.S.] Supreme Court

held that laws that burden political speech are subject

to strict scrutiny, which requires the government to

prove that the law furthers a compelling state interest

and is narrowly tailored to that interest.”


Accordingly, the MSC majority proceeded to assemble

facts showing that the Montana legislature had a

compelling state interest when ”one hundred years

ago”its members enacted the Montana law that prohibited

corporations from making campaign contributions. What

was that interest?  It was to reverse the situation as

it then stood in Montana:  Corporations had, at that

time, utterly corrupted the state’s government.


The MSC majority also reasoned that that same potential ”of corporate funds breeding Corruption” remains just as compelling today as it was when the law banning corporate money was first adopted.


Thus, the MSC rhetorically asked if the law must now

be repealed because the problem of corruption has been resolved?


The MSC then answered its own question with another

question: “Does a state have to repeal or invalidate

its murder prohibition if the homicide rate declines?”   

The MSC answered as followed:  “We think not. Issues of

corporate influence, sparse population, dependence upon

agriculture and extractive resource development,

location as a transportation corridor, and low campaign

costs make Montana especially vulnerable to continued

efforts of corporate control to the detriment of

democracy and the republican form of government.

Clearly sponsored candidates and Montana citizens, who

for over 100 years have made their modest election

contributions meaningfully count would be effectively

shut out of the process.”


The Montana justices made a particularly strong case

for a compelling state interest regarding prohibiting

corporate funding of the election of judges and

justices in Montana, a subject as to which they have

firsthand experience.


Thus, under the ruling of Western Tradition Partnership

Montana’s ban on corporation contribution remains ”for

now at least”in full force and effect.  Unsurprisingly,

however, it appears that the ruling is going to be

appealed to the U.S. Supreme Court.  The lawyer who

represented Citizens United, and who prevailed earlier

before the U.S. Supreme Court, James Bopp, Jr., has now

been hired by Western Traditional Partners, and the

other parties, to seek review of the MSC ruling.


Testing Montana’s Ruling


The MSC ruling was not unanimous; rather, the MSC was

divided, in a five-to-two vote.  The two dissenting

Montana justices felt that there was no room

under Citizens United for the MSC to carve out an exception.


Dissenting Justice James Nelson, who noted that he did

not personally agree with Citizens United, nonetheless

concluded that it was the “law of the land,” and thus,

that the Montana high court was bound to follow it.


Justice Nelson asked: “Has the State of Montana

identified a compelling state interest, not already

rejected by the Supreme Court, that would justify the

outright ban on corporate expenditures for political

speech effected by [Montana’s ban on corporate



He answered: “Having considered the matter, I believe

the Montana Attorney General has identified some very

compelling reasons for limiting corporate expenditures

in Montana’s political process.  The problem, however,

is that regardless of how persuasive I may think the

Attorney General’s justifications are, the [U.S.]

Supreme Court has already rebuffed each and every one

of them.  Accordingly, as much as I would like to rule

in favor of the State, I cannot in good faith do so.”

Justice Nelson concluded that he would not be surprised

if the U.S. Supreme Court reversed the MSC ruling summarily.


Despite Judge Nelson’s stance, I believe that the

majority ruling in the MSC opinion is not baseless.

U.S. Supreme Court opinions are not written like

statutes; rather, they are discussions of the law and

reasoning.  And the MSC reading of Citizens United is

not unreasonable.


Thus, maybe, just maybe, given the havoc Citizens United

has wrought in the 2012 election cycle’s the five

justices who overturned the one-hundred-year-old ban on

corporate money in federal elections will reconsider

their stances, agree with the MSC’s reading of their

ruling, and provide an exception.


Other states are tracking the Montana situation

closely. For example, a Maine lawmaker has introduced a

bill to adopt the Montana statue in Maine.  If there is

an exception to Citizens United, other states want to

follow quickly in embracing it.


Most likely, it will take a Constitutional amendment to

overturn Citizens United, and thankfully, efforts to

introduce just such an amendment are proceeding. But

the amendment process is very difficult, and while

public polling shows clear and overwhelming public

disapproval of the role of corporate money in politics,

this issue is not of the sort that moves large numbers

of people to take actions, and that is what is needed.

Rather, I expect public apathy to allow corporations

and their money to dominate politics under Citizen

United in 2012, and in the foreseeable future. It is a

mess, but a mess that favors Republicans, and a

powerful minority of Americans.  Thus, the ugly

situation with respect to elections and corporate money

is going to get much worse before it gets better.


John Dean served as Counsel to the President of the

United States from July 1970 to April 1973.


This column originally appeared in Justia’s Verdict.



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