Citizens United Has No Place in Big Sky Country: Montana Supreme Court

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A demonstrator carries play money while dressed as a "corporate zombie" as he walks with others taking part in an Occupy Wall Street protest in lower Manhattan in New York
Chief justice of Montana's Supreme Court cited the state's history with corrupt "copper barons" in upholding a century-old law banning corporate spending on candidates for elected office.

In upholding a century-old state ban on corporate spending in politics, Montana's top court last week issued a rebuke of the U.S. Supreme Court's landmark Citizens United ruling that has been cited in challenges to local campaign finance laws.

The Citizens United decision knocking down barriers to corporate and union political spending did not apply to Montana's 1912 law, the state Supreme Court said in a 5-2 ruling Friday, recounting Montana's history with corrupt copper barons who dominated local politics in the early 20th century.

The state's sparse population, low campaign costs, and dependence on agriculture and mining, Chief Justice Mike McGrath wrote for the majority, makes Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government.

With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, McGrath wrote, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, 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 decision comes amid efforts to overturn state and local campaign finance laws across the country--from New York to Arizona--in the wake of the 2010 Citizens United decision, which held that a corporation's independent political spending in favor or against a candidate is protected speech.

Montana's Corrupt Practices Act is similar to the federal ban on corporate campaign activity struck down at the Supreme Court. It bars corporations from making direct contributions to a candidate, or spending money on them. This extends to political groups, like so-called Super PACs, that exist to support or opposes a candidate.

Law Stems from Populist Push

McGrath explained that law was born from populist outrage over the battles between mining corporations and moneyed entrepreneurs; bribes given to state lawmakers for U.S. Senate appointments; and kickbacks to local judges.

Examples of well-financed corruption abound, he wrote.

The law was challenged by a painting and drywall business, a Second Amendment advocacy group and an organization the Montana Supreme Court described as a conduit of funds for... corporations who want to spend money anonymously to influence Montana elections.

This organization, now known as American Tradition Partnership, is also challenging Montana's law in federal court.

The groups challenging the Big Sky State's anti-corruption law say the Citizens United decision clearly states that government cannot restrict protected political speech. A trial court in Montana agreed and struck down the law.

But the state Supreme Court overturned the decision, taking a more narrow view of the Citizens United decision, which concerned a federal law preventing corporations from electioneering by issuing political ads within 30 days of a primary and 60 days of a general election.

In Citizens United, the Supreme Court said that government needs a compelling interest to limit political speech and that the Federal Elections Commission's regulations were too long and onerous to survive First Amendment scrutiny, according to McGrath.

[The Supreme Court] 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, McGrath wrote. [In 1912] the voters had more than enough of the corrupt practices and heavy-handed influence asserted by special interests controlling Montana's political institutions.

The question then, McGrath added, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did.

American Tradition Partnership's executive director, Donald Ferguson, said in a statement that the Montana Supreme Court has shown contempt for the overriding law of the land and has thumbed its nose at the United States Supreme Court.

Regardless of whether one believes corporations have the right to spend their money to do independent political ads, the Supreme Court has specifically addressed this question as a matter of constitutional law and the Montana Supreme Court has no authority or basis to tell the Supreme Court it is wrong, he added.

In a dissent, Justice Beth Baker agreed with Ferguson, predicting the majority's ruling will be a vain attempt to rescue Montana's Corrupt Practices Act.

I believe it is our unflagging obligation, in keeping with the courts' duty to safeguard the rule of law, to honor the decisions of our nation's highest court, she wrote. Citizens United makes clear that a state's outright ban on corporate political expenditures violates the First Amendment.

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