From the Montana Supreme Court comes a potential challenge to the United States Supreme Court’s landmark decision in Citizens United v. Federal Election Commission (“Citizens United”). The Supreme Court’s 2010 decision ruled, 5-4, that corporations’ and labor unions’ independent spending in elections is political speech and does not corrupt the political process; therefore, a ban on such spending included in section 203 of the 2002 Bipartisan Campaign Reform Act (“BCRA”) could not survive strict scrutiny under the First Amendment.1
Relying largely on Montana history, the majority of a divided Montana Supreme Court attempted to distinguish Citizens United in rejecting a similar challenge to the Montana Corrupt Practices Act of 1912 (the “MCPA”). The MCPA, the first ballot measure passed in Montana,2 was characterized by the Montana court’s majority as a reaction by the state’s small residential population against out-of-state corporations that had historically controlled the state’s natural resources, using corporate funds to elect compliant state legislators.3 Among these natural resources were mining interests, which were controlled by what the court called “Copper Kings.” For this reason, the court said, the MCPA requires corporations to make contributions and expenditures through a separate, segregated fund of voluntary contributions from shareholders, employees, and members.4 Otherwise, corporations are absolutely prohibited from making expenditures or contributions “in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”5 Like the federal independent expenditure ban invalidated in Citizens United, Montana’s law prohibits corporations from using their own funds to make independent expenditures in candidate elections.
Constitutionality of Montana’s Act Challenged
The case, originally styled Western Tradition Partnership, Inc. v. Attorney General,6 was filed in a Montana District Court by three separate corporations operating in the state. The plaintiffs argued that the MCPA violated their free speech rights under the First Amendment and the Montana Constitution.7 Western Tradition Partnership, Inc., is a “nonprofit ideological corporation,”8 the Montana Shooting Sports Association, Inc., is a “nonprofit corporation promoting issues relating to sports,”9 and Champion Painting, Inc. is a “small, family-owned painting and drywall business.”10 All three corporations sought to make independent expenditures in candidate elections, a category of speech that is prohibited by the MCPA.
These diverse corporate plaintiffs argued that the MCPA presents precisely the sort of corporate independent expenditure ban invalidated by the United States Supreme Court in Citizens United.11 Montana Attorney General Steve Bullock and the Commissioner of Political Practices, on the other hand, argued that the statute was distinguishable from the federal ban at issue in Citizens United.12 The most important distinction, Montana argued, was that Citizens United interpreted a federal statute that applied to federal elections, not a Montana statute governing Montana elections.13 Therefore, they contended, while the Citizens United Court might have found a dearth of evidence linking independent corporate expenditures and corruption in federal elections, Montana had an extensive history demonstrating a causal connection between campaign expenditures and wide-sweeping corruption prior to the MCPA’s enactment in 1912.14
In October 2010, District Court Judge Jeffery Sherlock of Lewis and Clark County granted the plaintiff corporations’ joint motion for summary judgment.15 Observing that “the Copper Kings are a long time gone to their tombs,” Judge Sherlock ruled that Montana’s ban on corporate expenditures fell under the umbrella of Citizens United, failed to pass strict scrutiny, and violated both the federal and Montana constitutions.16
Montana High Court Reverses and Distinguishes the Case from Citizens United
Attorney General Bullock immediately appealed to the Montana Supreme Court. “[T]he issue isn’t a matter of overturning Citizens United,” he argued, “but rather looking at Montana’s unique historical circumstances and why people passed the initiative to impose the ban [on independent corporate expenditures.]”17
In a December 30, 2011, decision, the court by a 5-2 majority reversed Judge Sherlock and ruled that the MCPA’s corporate expenditure ban was, in fact, constitutional.18 Writing for the majority, Chief Justice Mike McGrath appeared concerned that American tradition was engaged in “a multi-front attack” both on contribution restrictions and “the transparency that accompanies campaign disclosure requirements.”19 Justice McGrath found that this danger distinguished the case from Citizens United.
Citizens United could be distinguished, the majority found, on at least two other grounds. First, setting up a Montana PAC is less burdensome than complying with analogous federal law.20 Second, the risk of corruption from corporate contributions is much greater in Montana than in federal elections.21 Judge McGrath cited Montana’s unique history from the turn of the nineteenth century as well as recent evidence of corporate involvement in Montana ballot measure elections, but did not cite any evidence of actual corruption stemming from recent corporate contributions or expenditures in Montana. Finally, citing canons of Montana’s Code of Judicial Conduct, the majority stated that the independence of Montana’s judiciary, which is elected, would be imperiled by independent corporate contributions.22 Montana corporations, Judge McGrath wrote, could “effectively drown out all other voices” by making independent expenditures in judicial elections.23
Ultimately, the majority concluded that Montana had proved a compelling state interest—the avoidance of corruption—and that the ban was narrowly tailored.24 With an eye to the United States Supreme Court, the Montana court agreed emphatically with the Attorney General’s argument that Citizens United is applicable only to instances that are factually similar involving federal statutes and elections.25
One of the two dissenters, Justice Jane Baker, criticized the majority for “inventing distinctions in what I fear will be a vain attempt to rescue [the MCPA],” suggesting instead that the court should have construed the MCPA so that at least its reporting provisions would remain intact.26 Justice James C. Nelson also dissented, stating that while he “thoroughly disagree[d]” with Citizens United, Montana’s anti-corruption interests were not so unique among the fifty states to justify a different analysis under strict scrutiny.27 Montana, he wrote, was not entitled to “a special ‘no peeing zone’ in the First Amendment swimming pool.”28 Responding at length to the majority’s apparent concern that independent corporate expenditures in judicial elections would endanger the independent judiciary, Judge Nelson noted that strict recusal requirements, censure provisions, and other judicial conduct rules could be adopted, but that the state could not constitutionally “censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer.”29 Justice Nelson concluded, “When this case is appealed to the Supreme Court, as I expect it will be, a summary reversal on the merits . . . would not surprise me in the least.”30
Application to the U.S. Supreme Court
The plaintiffs retained attorney James Bopp, Jr., the architect of the Citizens United litigation, and applied to Justice Anthony M. Kennedy for a stay pending certiorari31 on February 9, 2012.32 The plaintiffs argued that the Montana Supreme Court’s decision was in direct conflict with Citizens United, causing irreparable harm, and should, in the public’s best interest, be summarily reversed.33
Attorney General Bullock responded on February 15, 2012.34 In its brief, Montana asserted that its supreme court had applied strict scrutiny to the record and had determined based on the facts that the MCPA violated neither the U.S. Constitution nor the Montana Constitution.35 Not only should the stay be denied, Bullock argued, but the case should not be decided on the merits without full briefing and a review of the record.36
Supreme Court Justice Anthony M. Kennedy Grants Stay
Two days later, on Friday, February 17, 2012, Justice Kennedy temporarily stayed enforcement of the ruling37 until the Supreme Court decides whether to grant or deny certiorari.38 As a result, corporations may now make independent expenditures in Montana candidate races, although they must truly be independent: Montana’s ban on corporate contributions to candidates and PACs, and its ban on coordinated corporate expenditures (i.e., in-kind contributions) remains in effect.
But even if political speech begins to fill the airwaves in the high country of Montana—and even, as the Montana Supreme Court feared, in judicial elections—what of Citizens United? Justice Ruth Bader Ginsburg, joined by Justice Steven Breyer, added the following statement to Justice Kennedy’s brief memorandum granting the stay:
Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United[,] . . . make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” . . . A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.39
* Edward Greim is an attorney in Kansas City, Missouri.
** Justin Whitworth is a student member of the University of Missouri Kansas City School of Law Chapter of the Federalist Society. He is a J.D. Candidate for May 2012 as well as a Law Clerk at the Kansas City firm Graves Bartle Marcus & Garrett, LLC.
1 Citizens United v. Fed. Election Comm’n, 558 U.S. __ (2010).
2 See Jess Bravin, A Lone Stance on Ad Spending, Wall St. J. (Oct. 12, 2010).
4 See Mont. Code Ann. § 13-35-227(3).
5 See Mont. Code Ann. § 13-35-227(1).
6 The case is now styled American Tradition Partnership, Inc. v. Attorney General because Western Tradition Partnership, Inc. has changed its name.
7 See Western Tradition P’ship, Inc. v. Attorney Gen., No. DA 11-0081, 2011 WL 6888567, at *1 (Mont. Dec. 30, 2011).
8 Brief for Petitioners at 5, Am. Tradition P’ship, Inc. v. Bullock, No. 11-A762 (Feb. 9, 2012).
11 Id. at 6.
12 See Charles S. Johnson, Court to Hear Challenge of Corporate Spending Ban, Helena Indep. Rec. (Sept. 30, 2010).
13 Id.; see also W. Tradition P’ship, Inc. v. Attorney Gen., No. BVD-2010-238, 2010 WL 4257195 (Mont. D. Ct. Oct. 18, 2010).
14 Id.; see also W. Tradition P’ship, Inc. v. Attorney Gen., No. BVD-2010-238, 2010 WL 4257195 (Mont. D. Ct. Oct. 18, 2010).
15 See W. Tradition P’ship, Inc. v. Attorney Gen., No. BVD-2010-238, 2010 WL 4257195 (Mont. D. Ct. Oct. 18, 2010).
16 Id.; see also Jess Bravin, Judge Strikes down Montana’s Ban on Corporate Political Expenditures, Wall St. J. (Oct. 18, 2010).
17 See Charles S. Johnson, High Court to Decide Fate of State Ban on Corporate Donations, Helena Indep. Rec. (Sept. 18, 2011).
18 See W. Tradition P’ship, Inc. v. Attorney Gen., No. DA 11-0081, 2011 WL 6888567, at *1 (Mont. Dec. 30, 2011).
19 Id. at *3.
20 Id. at *7.
21 Id. at *7-11.
22 Id. at *12-15.
23 Id. at *14.
24 Id. at *15.
25 Id. at *3-4.
26 Id. at *15.
27 Id. at *21.
28 Id. at *20.
29 Id. at *37.
30 Id. at *41.
31 Justice Kennedy is the Circuit Justice for the Ninth Circuit.
32 See Brief for Petitioners, Am. Tradition P’ship, Inc. v. Bullock, No. 11-A762 (Feb. 9, 2012).
33 Id. at 27-36.
34 See Brief for Respondents, Am. Tradition P’ship, Inc. v. Bullock, No. 11-A762 (Feb. 15, 2012).
35 Id. at 4-6.
36 Id. at 7-15.
37 See Charles S. Johnson, US Supreme Court Blocks MT’s Ban on Corporate Election Spending, Helena Indep. Rec. (Feb. 18, 2012).
38 See Am. Tradition P’ship, Inc. v. Bullock, No. 11-A762 (Feb. 17, 2012) (order granting application for stay).