Rejecting a landmark U.S. Supreme Court decision giving corporations the right to make independent campaign expenditures, the Montana Supreme Court has ruled that banning such spending is justified given Montana’s long history of businesses corrupting the state’s political process.
The state high court ruled on Dec. 30 that the U.S. Supreme Court’s decision last year in Citizens United v. Federal Election Commission did not apply to Montana’s Corrupt Practices Law, which prohibits corporations from using general funds to make political contributions.
In Citizens United, the Court ruled that the First Amendment prohibited government from limiting the independent spending of corporations and unions on “electioneering,” or communicating about a particular candidate.
The Montana court, reversing a lower state court that struck down Montana’s law as unconstitutional, cited Montana’s unique political history and differences between the state statute and the federal law at issue in Citizens United.
“The District Court erroneously construed and applied the Citizens United case,” wrote Chief Justice Mike McGrath in the majority opinion, in which four colleagues concurred. “The corporate power that can be exerted with unlimited political spending is still a vital interest to the people of Montana.”
Two judges dissented. In a lengthy opinion, Judge James Nelson showed open disdain for the rationale behind Citizens United but said he felt compelled to follow the precedent.
“While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the [U.S.] Supreme Court’s decision,” Nelson wrote. “And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”
Montana Attorney General Steve Bullock, who defended the statute along with state Political Practices Commissioner David Gallik, praised the ruling.
“We’re really pleased with the decision and think it’s based on solid constitutional analysis, common sense and a clear understanding of our history and our current system of electing our state’s leaders,” Bullock said in a prepared statement. “The Citizens United decision deals with federal laws and elections — like those contests for president and Congress. But the vast majority of elections are held at the state or local level, and this is the first case I am aware of that examines state laws and elections.”
Margot Barg of Wittich Law Firm in Bozeman, Mont., who represented the three groups challenging Montana’s law — Western Tradition Partnership Inc., Champion Painting Inc. and Montana Shooting Sports Association Inc. — did not return a call for comment as to whether she planned to appeal the decision to the U.S. Supreme Court.
James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., called the Montana Supreme Court’s decision “an amazing act of defiance of the Supreme Court.”
“It’s an anomaly,” said Bopp, who represents Champion Printing and Western Tradition Partnership, now called American Tradition Partnership PAC, in a similar case brought on Sept. 6 in federal court on Montana.
When asked whether he would get involved in the state case, Bopp said, “I don’t have any announcement to make yet.” His case, which involves corporations that want to make contributions in Montana, challenges “other provisions of the campaign finance law that we believe are unconstitutional,” he said.
Citizens United concerned a nonprofit group that sought to air Hillary: The Movie, a film critical of candidate Hillary Clinton, within 30 days of the 2008 Democratic primaries. The Supreme Court struck down provisions of the 2002 McCain-Feingold Act that prohibited corporations and unions from broadcasting “electioneering communications,” defined as a media communications that mention a candidate within 60 days of a general election or 30 days of a primary election.
The Montana case, once it hit the state high court, attracted numerous amicus organizations, including five former Montana Supreme Court judges, the American Civil Liberties Union of Montana Foundation and the Center for Competitive Politics, an organization in Alexandria, Va., that advocates for First Amendment rights.
The Montana law, which was enacted through a voter initiative in 1912, prohibits corporations from directly contributing to or making expenditures for a candidate or political committee but permits them to establish separate funds for such purposes as long as the contributions come from individual shareholders, employees or members of the corporation.
McGrath wrote that a “material factual distinction” existed regarding the regulatory effects of the Montana law versus the McCain-Feingold Act. He added that Montana passed its law after voters became concerned that mining interests disproportionately influenced political campaigns at the turn of the last century.
“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,” McGrath wrote. “Montana has unique and compelling interests to protect through preservation of this statute.”
He cited the 2008 election for chief justice of Montana Supreme Court, in which expenditures for media advertising reached $60,000, according to evidence submitted by the state. McGrath, a former Democratic state attorney general, won that election.
In his dissent, Nelson disputed that the nature of Montana’s politics is fundamentally different. “Respectfully, I cannot agree that this ‘Montana is unique’ rationale is consistent with Citizens United. And I seriously doubt this rationale is going to prevail in the Supreme Court when this case is appealed, as it almost certainly will be,” he wrote.
“In sum, what has happened here is essentially this: The [U.S.] Supreme Court…rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a ‘Made in Montana’ sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute,” he wrote.
Despite his animosity toward Citizens United, Nelson indicated that the Montana law might have to be changed to survive the precedent ruling.
“I am deeply frustrated, as are many Americans, with the reach of Citizens United,” he wrote. “The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the exaggerated power to influence voters and elections.”
Still, “when the highest court in the country has spoken clearly on a matter of federal constitutional law, as it did in Citizens United, the highest court in Montana — this Court — is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decisions,” Nelson wrote.
This article originally appeared in The National Law Journal.
