January 5, 2012
Worms continue to escape from the can opened by 2010’s Citizens United v. FEC.
The Supreme Court decision invalidated federal restrictions on corporate political expenditures, and has prompted a wave of litigation that seeks to do the same to state-level restrictions.
Almost without exception, such state laws have been voided since.
Montana, though, is now that exception.
Last week, the Montana Supreme Court upheld part of the state’s Corrupt Practices Act that barred corporations from making contributions or expenditures “in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”
The law also forbids a person or political committee from accepting such funds, but it allows for the creation of a separate fund by a corporation to make such expenditures, provided that the fund’s contributions come from a shareholder, employee, or member of the corporation.
To anyone familiar with the exceptionally broad scope of Citizens United, this law seems clearly unconstitutional under the ruling.
To five of the seven justices of Montana’s high court, though, it isn’t.
However, this isn’t because the majority found that the Montana law unrestrictive of corporate speech in a manner prohibited by Citizens United.
Instead, it’s because the majority found that the law was able to meet the proscribed “strict scrutiny” burden.
Specifically, the court found that the law was justified by a compelling governmental interest, it was narrowly tailored, and it was the least restrictive means for achieving that interest.
To back up this conclusion, the majority opinion went into great detail about the history of the law, the character of Montana’s electorate, and the other avenues available for potentially unlimited corporate expenditures under the law.
While it’s actually a pretty convincing argument, whether a law survives the strict scrutiny of a strict scrutiny analysis is typically a subjective decision by a U.S. Supreme Court majority in a given case.
Yes, yes, such an assertion is an affront to the law being an objective and detached entity, but it’s true.
It’s likely that the Montana Supreme Court was aware of this fact, but given how deeply unpopular Citizens United is, and that one of the major plaintiffs was an organization like Western Tradition Partnership, the court’s position is more understandable.
Western Tradition Partnership is an organization whose sole purpose is to act as a conduit for those who wish to make anonymous political donations.
While that sounds kind of shady, and despite Citizens United’s upholding donor identity disclosure requirements, this point is ultimately irrelevant to determining the law’s constitutionality, since it has nothing to do with disclosure requirements.
Interestingly, the two dissenting justices also expressed their disdain for Citizens United, but took a bit of a different approach than the majority.
Justice James C. Nelson, for instance, is deeply critical of Citizens United, but nonetheless concedes that the U.S. Supreme Court’s authority supersedes Montana’s own high court, and thus dissentingly votes to strike down the law.
Justice Beth Baker, the other dissenter, takes a more pragmatic approach (though one that is still unfavorable of Citizens United).
Recognizing that the U.S. Supreme Court will probably hear the appeal, she tries to salvage Montana’s Corrupt Practices Act by explicitly separating what’s constitutional and what is not.
Regardless of how few appeals the Supreme Court accepts, not to mention the fact that the ruling hasn’t even been appealed yet, Baker is correct in asserting that the case will find itself before the nation’s highest court.
In fact, it’s almost a certainty.
A denial of certiorari will invite other states to follow Montana’s example, which would essentially overturn Citizens United at the state level.
The problem with accepting it, though, is that it would need to actually make another Citizens United ruling – perhaps an even stronger one.
Given the public backlash from the first Citizens United, the reaction from another may significantly strengthen anti-Wall Street and anti-corporate public sentiment.
Even if that doesn’t happen, it will still make the Supreme Court even more unpopular than it is now.
For the time being, we can thank the Montana Supreme Court for raising the issue once again, and, of course, for providing some excellent legal and political entertainment.