The Montana Supreme Court on Friday put to work its own view of what the Supreme Court had decided in the controversial ruling allowing massive corporate spending in political campaigns, and came out differently: the state court upheld a 99-year-old state ban on the use of corporations’ own money to support or oppose any candidate in state elections. The 5-2 ruling, including two dissenting opinions, is here. One of the dissenters predicted that the ruling would not survive an inevitable appeal to the Justices, and might be overturned without even a close look.
Both the majority and the dissenters treated the voter-approved Corrupt Practices Act as a flat ban on independent spending of corporations’ internal funds to support or oppose specific candidates for state office — independent in the sense that the financial effort was not coordinated with a candidate. Thus, the measure was nearly identical to the ban in federal law that was struck down by the Supreme Court in January of last year in the case of Citizens United v. Federal Election Commission.
The Montana majority, in an opinion written by Chief Justice Mike McGrath, said that a closely similar ban could withstand the Citizens United ruling because the Supreme Court had left open the possibility that a “compelling interest” would allow such a measure, and the majority found that interest in Montana’s past history and its present economic and political climate. Corporations are more likely to have corrupting influence with their political spending in Montana, the majority said, because it is a small state, its economy still depends upon outside corporate interests, and its political campaigns are not very expensive so they do not bring out heavy donations by individuals to compete with vast corporate treasuries.
The dissenters, the majority noted, had interpreted the Citizens United ruling as declaring “unequivocally that no sufficient government interest justifies limits on political speech.” Disagreeing, the majority said that the decision put a burden upon government to show that such a restriction satisfies a “compelling state interest.” It concluded: “Here the government met that burden.”
The McGrath opinion provided a vivid chronicle of the days in Montana’s past when the so-called “Copper Kings” bought and sold politicians and judges in the way that other people buy and sell consumer goods (a comparison that the majority attributed to Mark Twain). It noted that the states’ voters had had enough of that corruption, so they used their newly acquired initiative power in 1912 to pass the ban on corporate political spending.
“When in the last 99 years,” the Chief Justice asked, “did Montana lose the power or interest sufficient to support the statute, if it ever did?” Even if the ban on corporate financing of campaign activity had in fact “preserved a degree of political and social autonomy,” the opinion said, that was no reason to “throw away its protections.” A state, McGrath wrote, would not repeal its murder prohibition just because the homicide rate went down.
Full Article: A Citizens United sequel: different result : SCOTUSblog.