Montana Supreme Court free speech case
The Montana Supreme Court has restored that court’s centuries-old banning of direct spending by corporations on political candidates or committees in a ruling released on Friday, December 30, 2011. Montana has gone head to head with the high profile U.S. Supreme Court decicision Citizens United v. FEC which held that Corporations are the same as citizens, and have the free speech rights of human beings.
The Montana Supreme Court 
which at its own site has a link to each justice granted a major win to Montana Attorney General Steve Bullock, who personally represented the state in defending its ban against corporate money intruding into elections. Attorney General Bullock stated:
“The Citizen’s United decision dealt with federal laws and elections-like those contests for president and congress. But the vast majority of elections are held at the state or local level and this is the first case that I am aware of that examines statelaws and elections.”
This case was decided under Montana’s 1912 Corrupt Practices Act, which itself was passed as a citizen’s ballot initiative. A corporate lobbying group, called “American Tradition Partnership” brought the suit in order to gain influence and overturn the Corrupt Practices Act and be able to spend corporate money to influence Montana’s elections.
Montana’s Supreme Court held that Montana has a “compelling interest” to uphold its rationally tailored campaign finance laws that include a combination of restrictions and disclosure requirements. The full, well reasoned and thoughtful 80 page decision of the Montana Supreme Court can be read here For the Montana Supreme Court website, where I was able to download this .pdf , use this link for the briefs as well as the decision. Note that I was able to download the decision without setting up an account, but it does trigger my pop up blocker when I access it from within Blue Mass Group, but not from within firefox or ie outside of this website; I am not sure why. The Montana Supreme Court site does have a disclaimer that says pop up blockers need to be temporarily disabled to view or download their opinions and .pdfs of briefs.
The year 2012 promises to be an interesting year.
I do wonder whether it will hold up. The First Amendment of course applies to the states as well as to the federal government, and, if Congress can’t prevent this kind of corporate spending under the First Amendment, it’s hard to see why a state should be able to do so. For that reason, this decision seems like a pretty good candidate for summary reversal, which would require only the same five votes that decided Citizens United.
As I said, David, 2012 will be an interesting year. And, of course, whether the First Amendment was correctly interpreted in Citizens United or not (as I have said, I consider that the Citizens United decision was both poorly reasoned, and actually harmful to the First Amendment, rather than upholding it) even though done by “the highest court in the land” remains a topic of hot discussion in appellate legal circles. Here there is, arguendo, a conflict between the 1st and 11th amendments, as well as the issue decided by our SJC in my Delk v. Gonzalez case where a state’s interpretation of its own constitution and statutes is entitled to deference from other states, and at times, from the USSCT.
my own view is the First Amendment was not correctly interpreted in Citizens United. But 5 Justices of the Supreme Court think otherwise, and those 5 are still sitting there, so a change in interpretation from that Court seems unlikely at the moment. And while federal courts routinely defer to state courts on the interpretation of that state’s own laws and constitutional provisions, they of course do not do so with respect to the application of the US Constitution to state law.
As to the idea of a conflict between the 1st and 11th Amendments, I’m pretty skeptical. The 11th Amendment, as currently interpreted, is a nearly-magical shield that prevents states from being hauled into federal court in a variety of circumstances, but I’m not aware of any instance in which the 11th Amendment has allowed a state to act in a manner inconsistent with the 1st Amendment.
First, this issue is important enough that notifying this community and providing links seemed a good service.
Second, I am in no position to discuss the Montana decision because I have not yet read the Opinion or the briefs. If you have done so, I would love your interpretation of them.
As to whether there is a useful interpretation of the interaction between the 1st Amendment and the 11th – I have never researched this. So the reality that I am unaware of any case enunciating a balancing set of criteria, or adjudicating an apparent conflict – no I am not but that isn’t worth spit because I never looked into it – and the Montana decision which entered just yesterday was not anything I was aware of, nor monitoring that litigation. If you have been doing so I welcome your insights.
And, of course, I wish you a healthy and peaceful new year – again I do think 2012 is likely to be very interesting indeed.
Wasnt one of these justices briefly considered for Kagan’s seat? Might do well as the next pick, not that Obama would have the guts to do so.
Sidney Thomas was on the 9th circuit not the SCOTSOM
Montana’s court anchored its decision in local law, local history, and strong facts. There is no case law stating that any one of the Bill of Rights is supreme over other articles of the Bill of Rights. In my view yes, there is heft and potential impact to the Montana Supreme Court decision for the following reasons:
1. There is a conflict between the 1st Amendment (Free Speech, at least as interpreted in the Citizens United fact pattern) and the 11th Amendment (reserving powers and rights to the states) due to the local history of Montana, the Montana Statute, the difference in Montana PAC law (Citizens United is in part premised on how difficult allegedly it is to wade through more than 589 pages of PAC regulations to set up a federal PAC for corporate “speech” – per my reading Montana has about a page and a half of PAC regulations) and the other factual differences spelled out by the Montana Supreme Court as a means to distinguish Western Tradition Partnership, Inc. v. Attorney General (its case) from Citizens United. Both the Western Traditions Partnership case and the Attorney General’s brief are well worth reads.
2. The elected nature of judges in Montana, and low money nature of elections in Montana, and compelling reason analysis therefrom by the Montana Supreme Court as a means to distinguish the two cases from one another.
3. The history of corruption and corporate influence in Montana, and how the statute attacked by the rather arrogant and shadowy lobbying firm of Western Tradition Partnership arose from that well-detailed history.
4. The nature of Western Tradition Partnership as detailed in the facts section of the Montana decision, and the nature of the record introduced in the case as detailed differ substantially from the Citizens United fact pattern.
5. The somewhat shaky legal foundation of the United States Supreme Court’s assumption of the role of absolute and final arbiter of constitutional interpretation (thank you Justice John Marshall) which itself has neither a constitutional nor a statutory basis – despite how ingrained it has become in the national legal and popular cultures.
However, the direct collision given the facts of Western Tradition Partnership v. Attorney General between the 1st and 11th Amendments, and the skill & depth of Montana AG Steven Bullock and his team makes this a serious challenge (and I gather Steven Bullock is now running for Governor of Montana as a Democrat and I somehow think it is worth keeping an eye on him going forward.
As with the Taney court in the Dred Scott decision, the majority in the Roberts Court in Citizens United have gone too far, and their interpretation of the law is harmful to the body politic, not the result of well-reasoned legal writing and by no means the only result that could have been reached, or a result that will endure.
So, Bijan, you asked and I provided those interested with the requisite homework to draw their own conclusions – I have read the majority Montana decision, not yet read the dissent or all the briefs. This, however, was enough for me to determine that at least potentially there is a collision course between the 1st and 11th Amendments.
…situations could also arise under the 11th Amendment impacting the Citizens United decision. The Montana case is a potential conflict between the 1st and 10th Amendments. A typo – and I owe the correction to BMGer Christopher in an in depth discussion on a listserv discussion of this case and these issues. Credit where credit is due.
people love to exaggerate the impact of Citizens United, as if it opened the doors to everything and we couldn’t stop corruption and quid pro quo influence of corporations that amassed their wealth through their business, or if there is some other public interest. That’s not true, David and Obama are ConLaw partisans who like to contribute to how ingrained it has become in the national legal and popular cultures.