State versus Corporate Power: What will the Court do with Montana’s rejection of Citizens United?

As reported by the Los Angeles Times on January 4th, the Montana Supreme Court has potentially pulled out the first big worm from the can that we refer to as Citizens United.  While the Supreme Court determined that corporations are persons for the purposes of speech, the Montana Supreme Court declared essentially, “except in Montana”.  The general blogosphere has been discussing this opinion[1] and suggesting that the Supreme Court will overturn this case as directly conflicting with its new precedent in Citizens United.

However, here at Without Prejudice, the Montana case is interesting for the attempt to distinguish Western Tradition Partnership v. Attorney General of the State of Montana (2011 MT 328).  Chief Justice McGrath in a long and detailed opinion notes that the laws of Montana, its unique electoral history, and its demographics suggest that Citizens United should not apply there.  The Montana Supreme Court seeks to manage what has rarely been accomplished—pass the strict scrutiny test for infringement upon a First Amendment right.[2]  The Chief Justice notes that Montana has a long history of corporate-financed corruption polluting its elections, and these circumstances gave rise to the 1912 law.

McGrath argues that this rich history combined with the size and modesty of citizen participation in state elections provides an environment where corporate monies can easily outstrip individual citizen participation.  The opinion cites several instances where over 90% of all campaign contributions for ballot initiatives came from institutional sources rather than individuals.  These two facts provide Montana with a compelling interest for restricting corporate donations.

The Montana law is also narrowly tailored.  Corporations and groups can set up PACs; “[u]nlike the Federal law PACs considered in Citizens United, under Montana law political committees are easy to establish and easy to use to make independent expenditures for political speech” [p 47].  Montana simply requires that these PACs disclose and report donations.  Therefore, Montana is not restricting speech but merely infringing in a narrowly tailored way to pursue a compelling interest.

Will the justification offered by the majority in Montana sway the justices if Western Tradition seeks an appeal?  Perhaps.  Firstly, this is a case of a state regulating its own elections.  The conservative majority of the Rehnquist and now Roberts Court has been fairly amenable to claims of state power as well as corporate interests; these two stimuli would be opposed in this case and it is unclear which interest would weigh more heavily for this bloc of justices.[3]  Secondly, by the time the case would be docketed and heard, the empirical evidence of corporate expenditures in both the primary and general presidential elections would be available.  The analyses of the effects of Citizens United may be sufficient to sway one of the majority to pull back on that strong statement. Either way, it is not as assured a reversal as pundits are suggesting.

It is even possible that the Montana Supreme Court made its case too well for some of the justices in the minority.  If Montana’s compelling interest is so specific to its history and its low population, does this mean that smaller and sparsely populated states can exempt out of the ruling and larger states such as California, New York, Texas, and Florida are bound to accept undisclosed and unfettered corporate spending?  I imagine this would be a hard pill for the minority to swallow.

Addendum: On February 20th, the Supreme Court issued a stay in this case pending a filing of a petition for certiorari and its disposition.

[1] e.g. Lithwick at Slate or Volokh at the Volokh Conspiracy.

[2] Wisconsin managed this feat in Wisconsin v. Yoder 1972 (p. 110 of your text), and yet still managed to lose the case.

[3] See Solberg and Lindquist, “Activism, Ideology, and Federalism: Judicial Behavior in Constitutional Challenges Before the Rehnquist Court 1986-2000, JELS, Vol 3:237-62.

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Filed under Federalism, Freedom of Speech, Assembly, and Association, Understanding the U.S. Supreme Court

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