I'll See Your Citizens United Case and Raise You Montana

Ken O'Brien

A surprisingly little noticed tremor rocked the legal world on the Friday before New Year's.

It came from of all places the big sky country of Montana. Montana, one of only a few states with more U. S. Senators than representatives in the U.S. House.

On a five to two vote, the Montana State Supreme Court challenged the U.S. Supreme Court decision in the Citizens United case.

For those who need refreshing on that landmark case, I provide the following summary taken from Wikipedia:

Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions. The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton's image, in apparent violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act in reference to its primary Senate sponsors....

The Supreme Court reversed the lower court, striking down those provisions of the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications.”^] An "electioneering communication" was defined in McCain–Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary. The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). McCain–Feingold had previously been weakened, without overruling McConnell, in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007).

Writing today in AlterNet, Steven Rosenfeld summarized the current impact of this ruling this way: “ 'Citizens United' Unleashed a Monster: Why the Real Winner In the Iowa Caucuses Is the Big-Money Super PAC:. They can spend unlimited amounts of money. They don't disclose donors until after the votes are counted. They deluged Iowa with millions of dollars of harsh negative ads.”

With this as a backdrop the Montana Supreme Court took up the case of  Western Tradition Partnership, a conservative political group now known as American Tradition Partnership, joined by Champion Painting Inc. and the Montana Shooting Sports Association Inc. challenging the state's century-old ban on direct spending by corporations for or against political candidates.

In the 80 page decision the majority stated:

The District Court erroneously construed and applied the Citizens United case.

That case considered the constitutionality of Federal statutes and regulations that

prohibited corporations from “electioneering” (making a communication that refers to a

clearly identified candidate for Federal office) within 30 days of a primary election or 60

days of a general election.

Citizens United was a case decided upon its facts, and involved “unique and

complex” rules that affected 71 distinct entities and included separate rules for 33

different types of speech in Federal elections….

A premise of Citizens United was that First Amendment protections extend to

corporations. Citizens United, 130 S. Ct. at 899. The Court additionally determined that

the option for a corporation to spend through a separate PAC was not a sufficient

alternative because of the burdensome, extensive, and expensive Federal regulations that

applied….

The Court found that the Government did not claim that corporate expenditures

had actually corrupted the political process and concluded that “independent

expenditures, including those made by corporations, do not give rise to corruption or the

appearance of corruption.”…

The Court determined that the government had not provided a compelling interest

to justify the speech restrictions at issue….

While Citizens United was decided under its facts or lack of facts,3 it applied the

long-standing rule that restrictions upon speech are not per se unlawful, but rather may be upheld if the government demonstrates a sufficiently strong interest….

Organizations like WTP that act as conduits for anonymous spending by others

represent a threat to the “political marketplace.” Mass. Citizens for Life, Inc., 479 U.S. at 264, 107 S. Ct. at 631….

Second, a material factual distinction between the present case and Citizens United

is the extent of the regulatory burden imposed by the challenged law. As noted above,

the Court in Citizens United emphasized the length, complexity and ambiguity of theFederal restrictions, including the power of the FEC to determine what speech is “safe for public consumption,” and the difficulty of establishing a PAC as an alternative to direct corporate spending. In contrast, under Montana law a political committee can be formed and maintained by filing simple and straight-forward forms or reports. (See e.g. §§ 13- 37-201 and -210; 13-35-402, MCA.)…

Laws that impact speech in some way must be evaluated by using the proper level

of scrutiny. This is determined by the type of speech that the law affects and the type of

burden that the law imposes….

The question then, is when in the last 99 years did Montana lose the power or

interest sufficient to support the statute, if it ever did….(emphasis added)

While Montana has a clear interest in preserving the integrity of its electoral

process, it also has an interest in encouraging the full participation of the Montana

electorate. The unrefuted evidence submitted by the State in the District Court through

the affidavit of Edwin Bender demonstrates that individual voter contributions are

diminished from 48% of the total raised by candidates in states where a corporate

spending ban has been in place to 23% of the total raised by candidates in states that

permit unlimited corporate spending….

Montana also has a compelling interest in protecting and preserving its system of

elected judges….

The people of the State of Montana have a continuing and compelling interest in,

and a constitutional right to, an independent, fair and impartial judiciary….

Clearly the impact of unlimited corporate donations creates a dominating impact

on the political process and inevitably minimizes the impact of individual citizens….

CONCLUSION

¶48 Citizens United does not compel a conclusion that Montana’s law prohibiting

independent political expenditures by a corporation related to a candidate is

unconstitutional. Rather, applying the principles enunciated in Citizens United, it is clear that Montana has a compelling interest to impose the challenged rationally-tailored statutory restrictions. We reverse the District Court and enter summary judgment in favor of the Montana Attorney General and the Commissioner of Political Practices and against WTP, MSSF and Champion. (emphasis added)

The actual language of the ban at issue in the case was: “A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”  Even though the phrase “in connection with a candidate or political committee” seems to suggest that the ban only applied to monies that were coordinated with a candidate or a candidate organization, that is not the way the state Supreme Court interpreted it. It treated it as a ban on any use of corporate money to try, independently, to promote or attack a specific candidate.

The law left corporations with the freedom to set up a separate political fund to spend on campaigns, but only if the money in the fund was given voluntarily by an employee, shareholder, or corporate member. Although the Supreme Court in the Citizens United case had found that the availability of a separate political action committee (PAC) for a corporation was not a sufficient substitute for a right to spend freely from its own resources, since a PAC was hard to create and maintain, the Montana court said the state’s law made it easy to create a corporate PAC.

The dissenters, the majority noted, had interpreted the Citizens United ruling as declaring “unequivocally that no sufficient government interest justifies limits on political speech.”  Disagreeing, the majority said that the decision put a burden upon government to show that such a restriction satisfies a “compelling state interest.”  It concluded: “Here the government met that burden.”

There can be little doubt that the plaintiffs in this case will appeal to the circuit court. It will be interesting to see if a review of the decision is granted and if so where it will go from there.

At present there is reason for opponents of Citizens United to have hope that it may be tempered in its scope and impact. After all, 21 other states had laws similar to that upheld in Montana.

JOIN THE FIGHT to get big money out of politics.