Montana Supreme Court takes a defiant stand against Citizens United v. FEC

Posted by AzBlueMeanie:

It will be interesting to see how the Tenther "states' rights" crowd reconciles this decision with the aberrant decision of a conservative activist U.S. Supreme Court in Citizens United v. FEC.

Lost in the Friday news dump before the long New Year's Day weekend was this decision of the Montana Supreme Court in which the state court defiantly 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.

Lyle Denniston at SCOTUSblog writes A Citizens United sequel: different result:

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.”

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The McGrath opinion was supported by Justices Brian Morris, Patricia O’Brien Cotter, James A. Rice, and Mike Wheat.

Justice James C. Nelson wrote a 44-page dissenting opinion (more than half again as long as the majority opinion), and used broadsides of bitterness and sarcasm to denounce the Supreme Court’s Citizens United ruling, even while concluding that it settled the First Amendment right of corporations to spend freely on politics, so state judges had no authority whatsoever to fail to apply it faithfully to state bans. He left no doubt that he was holding his nose, figuratively, as he wrote.  He also left no doubt of his conviction that the Montana ruling would be struck down, probably swiftly, by the Supreme Court in Washington.

Justice Beth Baker wrote a brief dissenting opinion, arguing that the state court should have struck down the flat ban even while upholding so much of the state law to preserve requirements for full public disclosure of the money that corporations take in and spend on politics.

Dahlia Lithwick at Slate writes Montana Supreme Court, Citizens United: Can Montana get away with defying the Supreme Court?:

Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does. The Montana law was enacted in 1912 and provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." After the Supreme Court handed down the Citizens United decision in 2010, many similar state laws were struck down by the courts or repealed, and a lower court in Montana agreed that the Montana ban was unconstitutional as well, finding that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.”

But by a 5-2 margin, Montana’s high court determined that the state law survived “strict scrutiny” because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United. In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.” Noting that, back in the last Gilded Age, Montana's wealthy "Copper Kings" bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.

McGrath lays it out this way: “The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections?” The majority went out of its way to note that unlimited campaign spending on judicial elections is also having a profoundly damaging effect on judicial integrity all around the country.

Two justices dissented from this view, insisting that the court was bound to follow the decision in Citizens United. But one of the two dissents, Justice James C. Nelson, unloaded on that Supreme Court decision with Scalia-like levels of derision and scorn. “Corporations are not persons,” writes Nelson. “Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creatures of government." Just in case that wasn’t crystal clear, Nelson goes on to add that “while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons."

There’s a lot to love in both the majority opinion and Nelson’s heartfelt dissent. But as Eugene Volokh notes, the opinion practically begs to be overturned at the Supreme Court. (Dissenting Justice Nelson agrees and even says the court will summarily reverse it.) But whereas Justice Kennedy’s opinion in Citizens United seemed to be rooted in the thin vapors of his own aspirational First Amendment thinking, the Montana Supreme Court fixed its focus on the actual corrupting influence of the groups suing to overturn the ban.

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More fundamentally, the majority and one dissenter seem to understand perfectly how much the American people resent being lied to about the burning need for courts to step in to protect the oppressed voices of powerless corporate interests. As Judge Nelson wrote in dissent, “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”

Arizona has a constitutional provision very similar to that of the state of Montana (the Arizona Constitution was also enacted in 1912):

Ariz. Const. Art. 14, § 18: "It shall be unlawful for any corporation, organized or doing business in this State, to make any contribution of money or anything of value for the purpose of influencing any election or official action."

Ariz. Rev. Stat. Ann. § 16-919, the implementing statute provides:

A. Except as provided in section 16-914.02, it is unlawful for a corporation or a limited liability company to make an expenditure or any contribution of money or anything of value for the purpose of influencing an election, and it is unlawful for the designating individual who formed an exploratory committee, an exploratory committee, a candidate or a candidate's campaign committee to accept any contribution of money or anything of value from a corporation or a limited liability company for the purpose of influencing an election. This subsection does not apply to political committees that are incorporated pursuant to title 10, chapters 24 through 40 and political committees that are organized as limited liability companies.

B. Except as provided in section 16-914.02, it is unlawful for a labor organization to make an expenditure or any contribution of money or anything of value for the purpose of influencing an election.

Following the U.S. Supreme Court decision in Citizens United v. FEC, however, our Tea-Publican Arizona legislature immediately followed the advice of the Goldwater Institute, a major proponent of the legal fictions that "money = speech" and "corporations are people," and amended Ariz. Rev. Stat. Ann. § 16-919 to add a new paragraph ostensibly to "correct" Arizona law to conform to the Citizens United v. FEC decision:

C. Notwithstanding subsections A and B of this section, a corporation, limited liability company or labor organization may contribute to an independent expenditure committee. (emphais added)

Ariz. Rev. Stat. Ann. § 16- 914.02 pertains to Reporting independent expenditures of corporations, limited liability companies and labor organizations, etc.

Ariz. Rev. Stat. Ann. § 16-920 pertains to Permitted expenditures by corporations and labor organizations that are not construed to be political contributions prohibited by law, i.e., "The establishment, administration and solicitation of voluntary contributions to a separate segregated fund to be utilized for political purposes by a corporation, labor organization…" (political action committees).

Despite what Arizona's founding fathers clearly intended by including a ban on corporate money in elections in Arizona's Constitution, Ariz. Const. Art. 14, § 18, Arizona's legislature has always found creative ways around this constitutional ban. And rather than take a defiant stand against the aberrant decision of a conservative activist U.S. Supreme Court in Citizens United v. FEC, our Tea-Publican legislature couldn't wait to effectively render this constitutional prohibition null and void through legislative legerdemain. Where was the Tenther "states' rights" crowd then to defend Arizona's Constitution? Oh, that's right — they all had their greedy hands out begging for corporate money.