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Will It Be Reversed?

Montana Supreme Court Flouts Citizens United

by JOHN DEAN

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 againstCitizens United.

The MSC held that when ruling in Citizens United, the U.S. Supreme Court had found “no compelling interest for the Federal restrictions on corporate political speech,” and so had concluded that the federal statue at issue there was “an 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 Unitedholds 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 underCitizens United for the MSC to carve out an exception.

Dissenting Justice James Nelson, who noted that he did not personally agree withCitizens 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 contributions]?”

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—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.