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View Diary: Montana Supreme Court Says Citizens United Does Not Apply in State Elections! (62 comments)

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  •  You misstate the holding of CU (6+ / 0-)

    this is not correct:

    That found that there was not enough evidence presented by the DOJ to justify "compelling interest" and it had the problem of the regulations being vague, confusing and long to navigate.

    This is not true.  What the SCOTUS held is that, when you are talking about independent expeditures (as opposed to direct payments to candidates, or what the SCOTUS calls "quid pro quo") corruption, or the fear of corruption, is not a sufficient justification for banning speech. That's a direct holding that corruption is not a sufficient "compelling interest" to ban speech in the form of independent expenditures.  Specifically, here is the holding: "we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."  

    Then the SCOTUS held that, even if Congress had demonstrated that independent expenditures (as opposed to contributions directly to candidates) were a source of corruption, an outright ban on corporate speech is not a permissible remedy under the First Amendment:  "The remedies enacted by law, however, must comply with the First Amendment ; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy."

    Whether you or I think those holdings are right or wrong, those holdings are binding on the Montana Supreme Court unless and until they are overruled by the SCOTUS, or the Constitution is amended.  There's no "wiggle room" for trying to avoid those holdings.    

    Here's the relevant section.  The bolding is mine:

    What we have said also shows the invalidity of other arguments made by the Government. For the most part relinquishing the antidistortion rationale, the Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. In Buckley , the Court found this interest “sufficiently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, it found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.” Id. , at 45.

         With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo ,” id. , at 26, and that “the scope of such pernicious practices can never be reliably ascertained,” id. , at 27. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo , 519 F. 2d 821, 839–840, and nn. 36–38 (CADC 1975) (en banc) (per curiam) ). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL , 479 U. S., at 260; NCPAC , 470 U. S., at 500; Federal Election Comm’n v. National Right to Work Comm. , 459 U. S. 197, 210 (1982) (NRWC) . The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here.

         “The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Buckley , 424 U. S., at 47; see ibid. (independent expenditures have a “substantially diminished potential for abuse”). Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States. See Supp. Brief for Appellee 18, n. 3; Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae 8–9, n. 5.

         A single footnote in Bellotti purported to leave open the possibility that corporate independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. Dicta in Bellotti ’s footnote suggested that “a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal independent expenditure ban, 424 U. S., at 46, and a law review student comment, Bellotti surmised that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” 435 U. S., at 788, n. 26. Buckley , however, struck down a ban on independent expenditures to support candidates that covered corporations, 424 U. S., at 23, 39, n. 45, and explained that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” id. , at 42. Bellotti ’s dictum is thus supported only by a law review student comment, which misinterpreted Buckley . See Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408 (1977) (suggesting that “corporations and labor unions should be held to different and more stringent standards than an individual or other associations under a regulatory scheme for campaign financing”).

         Seizing on this aside in Bellotti ’s footnote, the Court in NRWC did say there is a “sufficient” governmental interest in “ensur[ing] that substantial aggregations of wealth amassed” by corporations would not “be used to incur political debts from legislators who are aided by the contributions.” 459 U. S., at 207–208 (citing Automobile Workers, 352 U. S., at 579); see 459 U. S., at 210, and n. 7; NCPAC, supra, at 500–501 ( NRWC suggested a governmental interest in restricting “the influence of political war chests funneled through the corporate form”). NRWC , however, has little relevance here. NRWC decided no more than that a restriction on a corporation’s ability to solicit funds for its segregated PAC, which made direct contributions to candidates, did not violate the First Amendment . 459 U. S., at 206. NRWC thus involved contribution limits, see NCPAC , supra , at 495–496, which, unlike limits on independent expenditures, have been an accepted means to prevent quid pro quo corruption, see McConnell , 540 U. S., at 136–138, and n. 40; MCFL, supra, at 259–260. Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny.

         When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. See McConnell , supra , at 296–298 (opinion of Kennedy , J.) (citing Buckley, supra, at 26–28, 30, 46–48); NCPAC, 470 U. S. , at 497 (“The hallmark of corruption is the financial quid pro quo: dollars for political favors”); id. , at 498. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt:

    “Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” McConnell , 540 U. S., at 297 (opinion of Kennedy , J.).

    Reliance on a “generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Id. , at 296.

         The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley , supra , at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker. McConnell , supra , at 144 (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377, 390 (2000) ).

         Caperton v. A. T. Massey Coal Co. , 556 U. S. _ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Id. , at _ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin , 421 U. S. 35, 46 (1975) . Caperton ’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.

         The McConnell record was “over 100,000 pages” long, McConnell I , 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . expenditures,” id. , at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley ’s reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell , supra , at 125, 130–131, 146–152; see McConnell I , 251 F. Supp. 2d, at 471–481, 491–506 (opinion of Kollar-Kotelly, J.); id. , at 842–843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment ; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

    •  put it more simply, (2+ / 0-)
      Recommended by:
      blue aardvark, BlueStateRedhead

      even though Buckley holds that campaign finance laws are analyzed using a balancing test, Citizens United holds that for ads regulating direct expenditures, the government always loses.

      Besides, a Scotus that overturned itself in Citizens United would overturn this one, too, so all you'd get is one more 5-4 ruling that CFR is unconstitutional.

      "This world demands the qualities of youth: not a time of life but a state of mind[.]" -- Robert F. Kennedy

      by Loge on Tue Jan 03, 2012 at 07:49:29 AM PST

      [ Parent ]

      •  one question (1+ / 0-)
        Recommended by:

        How can SCOTUS make the claim about our tradition being more speech when we have seen laws like the espionage act? Many times through our history government has made it a crime for certain forms of speech. Yet when it comes to corporations "speaking" in the political process suddenly we have a sacred history of encouraging more speech?

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