Supreme Court throws out Montana ban on corporate campaign spending
By Robert Barnes and Dan Eggen, Updated: Monday, June 25, 6:04 PM
The Supreme Court on Monday overturned a century-old Montana law that prohibited corporate spending on political races in the state, ruling 5 -4 that the measure violates the First Amendment rights of companies to spend funds on elections.
The decision fell along similar lines as the high court’s 2010 decision in Citizens United v. Federal Election Commission , which found that corporations and unions have a free speech right to spend unlimited amounts of money for and against candidates.
Late last year, the Montana Supreme Court upheld a 100-year-old state law banning corporate spending on elections that arose from the corruption that troubled Montana during the copper baron era. The state’s high court said that even after the Citizens United ruling, the legacy of corporate control of its politics and other factors unique to the state justified a ban on spending by corporations regulated by the state.
But the Supreme Court’s conservative wing ruled Monday that Montana’s arguments “either were already rejected in Citizens United, or fail to meaningfully distinguish that case,” according to an unsigned opinion. The finding leaves Citizens United intact and scuttles any chance, at least for now, of reconsideration.
Justice Stephen G. Breyer penned a short dissent for the four-judge minority, writing that Montana’s experience “casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
Justice Elena Kagan, who joined the court after the Citizens United ruling, joined Breyer, Ruth Bader Ginsburg and Sonia Sotomayor in the dissent. Breyer and Ginsburg said in February that the court should use the case to revisit a key holding in the Citizens United ruling.
“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’ ” Ginsburg wrote in February.
The language was a reference to Justice Anthony M. Kennedy’s majority opinion, which declared that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Besides lifting the ban on corporate and union expenditures, a lower court and the Federal Election Commission have interpreted the ruling to mean that unlimited individual contributions must be allowed, clearing the way for “super PACs,” which are fundraising groups closely identified with candidates but technically independent.
The presidential campaign has seen an unprecedented explosion of spending by wealthy individuals, many making multimillion-dollar contributions on behalf of their favored candidates. President Obama and other Democrats, who have sharply criticized the Citizens United ruling, have been pushing for new disclosure rules for many independent groups.
Monday’s decision to overturn the Montana law drew strong condemnation from activists who favor tougher limits on money in politics. Fred Wertheimer of Democracy 21, who helped draft many of the nation’s post-Watergate campaign finance reforms, said it was “full speed ahead” with efforts to pass a constitutional amendment and other legislation aimed at mitigating Citizens United.
“Citizens and the nation are not going to accept the Supreme Court imposed campaign finance system that allows our government to be auctioned off to billionaires, millionaires, corporate funders and other special interests using political money to buy influence and results,” Wertheimer said.
But Bradley Smith, a former FEC chairman who heads the Center for Competitive Politics, said the Montana decision “is correct, both empirically and as a matter of law.”
“In the two years since Citizens United, campaigns have been more competitive and more issue-oriented, with higher voter turnout and more voices heard,” Smith said. “As a matter of constitutional law, it is simply obvious that citizens don’t lose their right to speak merely because they join together in an association, whether that be a corporation or a union.”
Richard Hasen, a law professor the University of California-Irvine, wrote on his widely-read election law blog that the outcome of the Montana case is actually a “relative victory for campaign-finance reformers” because the five-justice majority shows no signs of budging on Citizens United.
“Taking the case would have made things so much worse,” Hasen wrote.
The five justices who made up the majority in Citizens United remain on the court and have consistently held that many legislative attempts to control the influence of money in politics run afoul of constitutional guarantees of free speech. Kennedy, who wrote the Citizens United decision and is often the deciding vote when the court splits ideologically, is a leader on that issue.
The political committee and Montana corporation that challenged the Montana law argued that the U.S. Supreme Court should simply overturn the state Supreme Court’s 5 to 2 decision, which acknowledged the apparent conflict with the Citizens United ruling.
Wrote one dissenting Montana justice: “When the highest court in the country has spoken clearly on a matter of federal constitutional law . . . this court is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision.”
James Bopp, an Indiana lawyer who has frequently challenged campaign finance restrictions as an affront to protected political speech, represents the Montana challengers.
“Is this court going to limit the right of speakers to engage in core political speech because they spend huge sums in doing so?” he asked in his petition. “Or because the state they happen to be in had corruption problems, or a corporation employed a lot of people, over a century ago?”
But Montana Attorney General Steve Bullock told the court that states should have leeway in unique situations to regulate spending by corporate interests. He said domination of state politics by corporate “copper kings” led citizens to enact the corporate spending ban.
“No state in the union has detailed a more compelling threat of corruption by corporate campaign expenditures than Montana, and the unrefuted testimony presented below establishes that the corruption threat continues against Montana’s state and local elections,” Bullock wrote in his petition to the Supreme Court. “That threat includes the domination of Montana’s small republic by out-of-state, foreign corporations.”
Bullock was joined by 22 states and the District of Columbia asking the court to review the Montana case.
About half of states allow corporate spending, in some cases including direct contributions to candidates, which federal law does not allow.
The case is American Tradition Partnership v. Bullock .