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View Diary: MONTANA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (288 comments)

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  •  This decision only concerns (2+ / 0-)
    Recommended by:
    VClib, coffeetalk

    Independent expenditures on Montana state races.

    No way the decision stands.  Could be 9-0 summary reversal.

    •  What's your expected basis for the reversal (0+ / 0-)

      other than a citation to Citizens United (which I realize might be all there is)?

      Democrats must
      Earn the trust
      Of the 99% --
      That's our intent!

      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

      by Seneca Doane on Sat Dec 31, 2011 at 07:43:17 PM PST

      [ Parent ]

        •  Yes -- but not all that's appropriate (0+ / 0-)

          This is action under Montana's own constitution, dealing with intrastate issues.  Even if they're saying "you can't take away rights in state constitution that are granted in the federal constitution," it would be wise to explain that as opposed to leaving over the possibility that they are, for example, doing a Dormant Commerce Clause analysis rather than telling the states that their decision engulfs the field.

          Democrats must
          Earn the trust
          Of the 99% --
          That's our intent!

          "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

          by Seneca Doane on Sat Dec 31, 2011 at 09:23:41 PM PST

          [ Parent ]

          •  huh? (1+ / 0-)
            Recommended by:
            VClib

            Decision, p7:

            The District  Court specifically did not address whether § 13-35-227, MCA, violated the Montana Constitution, and further noted that the decision had “no effect on direct corporate contributions to candidates or to any existing or future disclosure laws that might be enacted.”  Those aspects of Montana law are therefore not at issue in this case.  
            •  Oh -- so the same case comes up again (1+ / 0-)
              Recommended by:
              Adam B

              under the state Constitution.  OK, then!  Laissez le bon temps roullez!

              Kudos for having read the decision, Adam, when I simply relied on the summary in the diary.  I'm so glad that I didn't offer this as formal legal advice.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

              by Seneca Doane on Sun Jan 01, 2012 at 11:49:04 AM PST

              [ Parent ]

              •  State const'n can't provide less speech rights... (2+ / 0-)
                Recommended by:
                VClib, Wham Bam

                ... than federal.

                •  One might think so ... (0+ / 0-)

                  or one might think that this may provide a good opportunity for the Citizen's United majority to review and reconsider and revise what it has wrought.  I think that your thinking on how settled this issue is is, from your perspective, wishful.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                  by Seneca Doane on Sun Jan 01, 2012 at 01:27:54 PM PST

                  [ Parent ]

                  •  via Rick Hasen (3+ / 0-)
                    Recommended by:
                    Seneca Doane, VClib, SoCalSal

                    ElectionlawBlog:

                    How did the Montana Supreme Court try to get around the holding of Citizens United?  It took SCOTUS’s statement that independent spending cannot corrupt and pointed to evidence that such spending has in fact corrupted in Montana.

                    ... [T]he statement in CU that independent spending cannot corrupt is a fiction.  As I explained in this Michigan Law Review piece on the case, the statement both defies common sense and is in direct tension with the Court’s holding in Caperton v. Massey.  As I argue in this piece, if the Court were being honest in Citizens United, it would have said something like:  We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.

                    But the Court didn’t say that, because it would have faced even greater criticism than it already has.  So it dressed up its value judgment (no corruption “implied in law”) as a factual statement.

                    The Montana Supreme Court called SCOTUS on this.  And when SCOTUS reverses, the disingenousness of this aspect of CU will be on full display for all.

                  •  SD - it isn't settled forever (1+ / 0-)
                    Recommended by:
                    Adam B

                    but it's settled for now. Your idea that in reviewing the Montana decision the majority will reverse themselves on CU is wishful thinking. Somewhere in this thread people are speculating that the reversal will be 9-0, which I think is much more likely than any short term change in CU.

                    "let's talk about that"

                    by VClib on Sun Jan 01, 2012 at 06:30:54 PM PST

                    [ Parent ]

                  •  Unlikely. The Supreme Court does not take kindly (1+ / 0-)
                    Recommended by:
                    coffeetalk

                    to blatant attempts by state courts to ignore its rulings.

                    •  That really depends whether there is a basis (0+ / 0-)

                      for distinguishing the earlier ruling, doesn't it?  And that small selection from Rick Hasen that Adam presents above suggests one way that there might well be.

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinksy OCcupy!

                      by Seneca Doane on Sun Jan 01, 2012 at 10:56:49 PM PST

                      [ Parent ]

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