Will It Be Reversed? Montana Supreme Court Flouts
Citizens United

by JOHN DEAN

Weekend Edition January 27-29, 2012

http://www.counterpunch.org/2012/01/27/montana-supreme-court-flouts-citizens-united/

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.

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