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

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  •  I understand that CU was about independent (0+ / 0-)

    expenditures. That distinction is not what the MT court was dealing with. The MT court is of the opinion, both majority and minority, that CU would invalidate MT's law on corporate contributions to campaigns or committees unless an exception exists. They understand that CU involved Federal law, Federal elections, and independent expenditures. But the plaintiffs argued and the majority accepted that CU would invalidate MT's law unless CU allows an exception for a compelling state interest and finds such interest. The minority opinions also accept the applicability of CU and say there is no exception or that the standard is not met.

    Under your reasoning, the entire MT decision and all three opinions are irrelevant. They should have ignored CU because it was inapposite. I hear you but I think you'll find that the SC does not share your view. They will grant cert and will opine on the whether the 1st amendment ruling in CU applies to state elections, whether it applies to contributions to candidates and committees, whether the 1st Amendment  protection is absolute, and if not how compelling a state interest must be.

    Further, affiant sayeth not.

    by Gary Norton on Mon Jan 02, 2012 at 08:35:06 AM PST

    [ Parent ]

    •  Gary - from the MSC opinion (1+ / 0-)
      Recommended by:
      Gary Norton

      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.  

      "let's talk about that"

      by VClib on Mon Jan 02, 2012 at 08:53:31 AM PST

      [ Parent ]

      •  Yes, My language was loose, in part because (0+ / 0-)

        that is not the point of the discussion. This case does not involve contributions to candidates because they were not at issue, but the statute does prohibit contributions to candidate.

        Section 13-35-227, MCA, was originally enacted as an initiative by the Montana voters in 1912. It provides:
        (1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.
        (2) A person, candidate or political committee may not accept or receive a corporate contribution described in subsection

        I did not focus on this because it was not an issue, but it will eventually be an issue.

        But you are wrong about the applicability of CU. That is all this case is about. All I was trying to do was summarize the holding and rationale and suggest what will be at issue in the SC using my words but not very successfully. So I will use the words of the court. The MT court is fully aware that the CU decision is only the first of a string of decisions to come where it's full breadth and scope will be revealed.

        Here the court summarizes the trial court's decision,

        Upon the plaintiffs’ motion for summary judgment, the District Court considered whether § 13-35-227(1), MCA, violates the First Amendment to the United States Constitution to the extent that it restricts WTP, MSSA or Champion from making independent corporate expenditures on behalf of candidates.1    The District Court applied Citizens United v. F.E.C., 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) and determined that § 13-35-227(1), MCA, impacts the corporations’ political speech protected by the United States Constitution. The District Court then considered whether the State had demonstrated a compelling interest for the restriction on speech, and whether the restriction is narrowly tailored to achieve that interest. While it answered both questions in the negative, the District Court did not conduct a detailed analysis of the compelling interest question. Instead, it concluded that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.” (Quoting Minn. Chamber of Comm. v. Gaertner, 710 F. Supp. 2d 868 (D. Minn.

        So the MT Supreme Court said that not only did the lower court hold the MT law violates the 1st Amendment as interpreted by the CU court, but that there is an absolute prohibition. with no exceptions.

        The MT court then explains its analysis of CU, first saying,

        The District Court erroneously construed and applied the Citizens United case.

        It then explains why CU was erroneously constructed i.e., that there is no per se violation and secondly how the "compelling state interest" standard should be applied.

        A premise of Citizens United was that First Amendment protections extend to corporations. Citizens United, 130 S. Ct. at 899. The Court additionally determined that the option for a corporation to spend through a separate PAC was not a sufficient alternative because of the burdensome, extensive, and expensive Federal regulations that applied. The Federal law allowed corporations to form a separate segregated fund (sometimes called a political action committee or PAC) as long as the funds were limited to donations from stockholders or, in the case of unions, its members. The Court found the regulations governing the organization of PACs to be “onerous” restrictions that might not allow a corporation to establish a PAC in time to make its views known in a current campaign. Citizens United, 130 S. Ct. at 898. Therefore, because the Federal laws and regulations severely restricted speech, their constitutionality could be maintained only upon a showing that they further a compelling governmental interest and are narrowly tailored to achieve that interest. Citizens United, 130 S. Ct. at 898.

        The Court found that the Government did not claim that corporate expenditures had actually corrupted the political process and concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Citizens United, 130 S. Ct. at 909. However, if elected officials do succumb to improper influences from independent expenditures, “then surely there is cause for concern.” Citizens United, 130 S. Ct. at 911.

        The Court determined that the government had not provided a compelling interest to justify the speech restrictions at issue. The Court considered and rejected arguments that preventing the distorting effect of large expenditures; preventing corruption or the appearance of corruption; or protection of dissenting shareholders were sufficient interests to support the Federal restrictions. Therefore, finding no compelling interest for the Federal restrictions on corporate political speech through independent expenditures, the Court found an impermissible contravention of the First Amendment. Citizens United, 130 S. Ct. at 911.

        While Citizens United was decided under its facts or lack of facts, it 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. Citizens United, 130 S. Ct. at 898; Federal Election Comm. v. Mass. Citizens for Life, Inc., 479 U.S. 238, 251- 52, 107 S. Ct. 616, 624 (1986); Bluman v. Federal Election Commission, 2011 U.S. Dist. LEXIS 86971 (D. D.C. 2011) (upholding Federal ban against campaign contributions by foreign citizens). The Supreme Court in Citizens United applied the highest level of scrutiny to the restrictions at issue there, requiring the government to demonstrate a compelling interest, although the level of evidence needed to satisfy heightened scrutiny will vary with the “novelty and plausibility of the justification raised.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 391, 120 S. Ct. 897, 906 (2000). Therefore, the factual record before a court is critical to determining the validity of a governmental provision restricting speech.

        The Majority then castigates the dissent for adopting the per se rule,

        The Dissents assert that Citizens United holds unequivocally that no sufficient government interest justifies limits on political speech. We disagree. The 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. The Court, citing Wisconsin Right to Life v. FEC, 551 U.S. 449, 464, 127 S. Ct. 2652, 2663-64 (2007), clearly endorsed an analysis of restrictions on speech, placing the burden upon the government to establish a compelling interest. Citizens United, 130 S. Ct. at 898.    Here the government met that burden.

        There's much detail of MT history and why the compelling state interest standard is met, concluding with

        Conclusion - Citizens United does not compel a conclusion that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional. Rather, applying the principles enunciated in Citizens United, it is clear that Montana has a compelling interest to impose the challenged rationally-tailored statutory restrictions.

        That's all  I was trying to say. Cases are decided on their facts but their holdings and analysis are then applied to different facts. When this gets to the SC, the SC will apply the CU rationale to the MT facts. Hopefully it will agree with the MT SC that there is no per se 1st amendment violation and that states should be given latitude in interpreting their laws and determining whether a compelling state interest exists. Hope springs eternal that it will go even further in limiting CU.

        Further, affiant sayeth not.

        by Gary Norton on Mon Jan 02, 2012 at 12:19:11 PM PST

        [ Parent ]

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