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Montana State Capitol

There is some big news on the Citizens United front this morning. The Montana Supreme Court has found that the State laws governing unlimited corporate donations to state candidates actually pass muster under that (horrible and flawed) decision.

This is in response to a trio of plaintiffs who claimed that Montana’s ban on direct use of unlimited corporate funds was an unconstitutional infringement on their First Amendment rights of free speech.

The three plaintiffs were a painting and dry wall company, owned and operated by the sole employee, Champion Painting; a sportsman’s (read 2nd Amendment shop) group called Montana Shooting Sports Foundation (MSSF), and this very shady group from Colorado, called the Western Tradition Partnership (WTP).

The basic premise of the suit is that even though Montana has a very straightforward process of setting up Political Action Committees (PAC) , which can then raise and spend unlimited money, as long as they report who their donors are, are being stifled.

The State contended that Citizens United did not apply because even though it struck down almost all limits on outside political expenditures by corporations, the Supreme Court did so because the DOJ failed to present that the government had a compelling interest in limiting speech. It applied the ‘strict scrutiny’ standard when doing so.

In Montana, the State felt it had such compelling interest in state elections. The State Supreme Court agreed.

The compelling interests fall four areas; low population, low cost of elections there, large out of state interests (in the form of mining and resource companies and rail roads), and judicial independence.

You see Montana has a population of just under 1 million people, even though it is the 4th largest state by area. The primary industries are all resource based and the companies that own the mines are almost completely based out of state.

Those two factors combine to make it very profitable for the out of state interests to control the legislature. And back in the days of the Robber Barons that is exactly what they did. They bought legislatures and judges with such regularity that the people of the state were basically pushed out of the political sphere completely.

In the early 1900’s the people finally fought back and managed to get ballot initiatives incorporated in the state constitution and then put in some of the first bans on unlimited money in politics in place in 1912. Which are the very laws that the WTP and it’s two patsies are trying to overturn.

The State Supreme Court found that due to the same situation existing today, namely that outside interests with no real interest of the people at heart, would if they could, spend huge amounts of money to seat a legislature and judiciary that was favorable to them at the expense of the people of the Treasure State.

The opinion included this bit about judicial elections:

independent spending, both in terms of fairness and in terms of the public perception of
impartiality. Litigants appearing before a judge elected after a large expenditure of
corporate funds could legitimately question whether their due process rights were
adversely impacted. In the 2008 contested election for Chief Justice of the Montana
Supreme Court, evidence presented by the State in the District Court indicated that the total expenditure for media advertising was about $60,000. It is clear that an entity like Massey Coal, willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices. The historic Heinze-Anaconda conflict noted above illustrates the obvious negative and corrupting effects of a “bought” judiciary.

All of this is important as the keyhole that the Montana High Court is squeezing through is “compelling interest”. The fact that elections are buyable in Montana, and at a very cheap price is definitely a compelling interest.

The other leg that this decision rests on is the level of restriction that the law places on speech. Here the plaintiffs also get smacked around.

You see in Citizens United, the SCOTUS found that the thousands of pages of rules and rulings and process for getting rulings on spending were so burdensome as to be unconstitutional. That is not the case in Montana.

It is very easy and quick to set up a PAC, as long as you report who you are getting your money from when you spend it. In fact one of the plaintiffs, the MSSF (the gun rights guys) has a PAC and has been politically active with it for more than a decade.

But the WTP is really upset about this provision. It has as part of its out of state advertising materials the following:

There’s no limit to how much you can give. As you know, Montana
has very strict limits on contributions to candidates, but there is no limit to
how much you can give to this program. You can give whatever you’re
comfortable with and make as big of an impact as you wish.

Finally, we’re not required to report the name or the amount of any
contribution that we receive. So, if you decide to support this program, no
politician, no bureaucrat, and no radical environmentalist will ever know
you helped make this program possible. The only thing we plan on
reporting is our success to contributors like you who can see the benefits of
a program like this. You can just sit back on election night and see what a
difference you’ve made.

Sound like the kind of thing the Koch Brothers would like to throw money at to you?

In fact WTP has resisted at all points of discovery any kind of admission as to who its donors are or even the purpose of the corporation. The State presented evidence (that was not contested by them) that their sole purpose is to raise and spend unlimited money in Montana state elections, anonymously.

Here is how perfidious this group is, they argued that the reporting requirements in this case should be enough to allow completely unlimited donations, while at that same time they were in court challenging the constitutionality of the reporting requirements. That they are trying to open up Montana to being bought and sold is really beyond doubt.

The combination of these factors allowed the Supreme Court to show that they did indeed have a compelling interest and that the requirements (contrary to WTP’s assertions) did not limit political speech in an burdensome way.

Now the question is whether it will survive a challenge in the United States Supreme Court, which is the next likely stop.

It might, even with this High Court. It seems to me that the State really did meet the burden of compelling interest and narrowly construed laws. This is the door SCOTUS left open as fig leaf, so they may be hoist by their own petard.

Unfortunately it is unlikely that a lot of other states will have the history, set of circumstances and laws that let Montana say they are not going to allow unlimited corporate spending on elections.

Still it is good to see that there is not the blanket ending of spending bans everywhere. Maybe the example of the 2012 election cycle will make the High Court Justices reconsider their view that there is not a compelling interest in keeping corruption out at the Federal level, though I would not hold my breath.

The floor is yours.


Never let it be said that I am not open to being wrong (even if I freaking hate it like poison). After reading what Coffeetalk and Adam B presented I have come to the conclusion that I was wrong in the thinking that the SCOTUS is going to give this even two minutes of consideration.

The reason for this is twofold. First off, they have decided that any speech can not be corrupting. That is a real strech when we are talking about money as speech,but that is what they decided and they are unlikely to throw up their hands and say "Whoops we screwed the pooch".

Second it is still new enough that they will not want to entertain challenges to a decision they just made, when nothing materially has changed. What I mean by that is that there are no new laws at the Federal level that would require their review. The law that is being challenged in Montana was on the books at the time of Citizens United, and as such has to be presumed to have been factored in at the time of the ruling.

All that completely sucks, but is it is what it is and there is no way to get around it.

So, if I gave folks false hopes about this, I do apologize. It grew out of my admittedly flawed understanding of Citizens United. If we want to fix this god awful cock-up it looks as though we will have to do it through the amendment process. Sadly I don't have a lot of hope there.


Bill Egnor, AKA Something the Dog Said.  

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