Will Montana’s challenge to Citizens United v. FEC get a hearing before SCOTUS?

Posted by AzBlueMeanie:

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

[B]y 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.

Three corporations have now filed a petition to the U.S. Supreme Court asking it to strike down, without further briefing and oral argument, the state law on the premise that the Montana Supreme Court in upholding it simply failed to follow the Court’s 2010 ruling in Citizens United v. Federal Election Commission, freeing corporations (and labor unions) to spend their own money as they wished on political campaigns.

Justice Anthony M. Kennedy has the petition. He has the authority to act on his own on the stay issue, but would have to share with his colleagues any consideration of summarily overturning the state court’s decision; that would take five votes.

Lyle Denniston writes at SCOTUSBlog Montana: Don't rush on campaign case:

Noting the century-long history of the corporate spending ban in Montana, state Attorney General Steve Bullock contended that that history showed that “nothing in the [Corrupt Practices] Act’s ordinary operation necessitates truncating this Court’s standard procedures.”  If the Justices are going to review the Montana law’s validity, they should do so without rushing to judgment, Bullock asserted.

The Citizens United decision, the brief went on, should not control the fate of the Montana law.   The state, under its law, has imposed “far different obligations” on corporations than did the federal election law nullified by the Court two years ago, it said.  Unlike the complex forms that corporations must fill out under federal law when they disclose how they spend internal funds, Montana only requires a “simple two-page disclosure form” and very short additional forms when further spending is done, the brief said.

Moreover, the state argued, the federal law at issue in Citizens United imposed “an outright ban, backed by criminal sanctions,” while Montana seeks to focus on disclosure, not sanctions.   Corporations in the state need only set up a segregated fund to do their spending on politics, and state law makes that simple to do, it added.

In Citizens United, according to the brief, the Federal Election Commission did not contend that independent corporate spending had corrupted the political process, but Montana does make that claim based on its own history “and it deserves a full hearing before any review by this Court.”

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[T]he state attorney general said that contradicted a more recent decision by the Justices, summarily affirming a lower court decision that had upheld a flat ban on any spending in American elections by foreign nationals.   That ruling was Bluman v. FEC, docket 11-275, affirmed January 9.   The decision in that case relied upon a finding of a compelling interest in “protecting the overall process of democratic self-government,” the brief noted.

Asserting a strong states’ rights argument, the Montana filing said that a swift order nullifying the state law would throw away all protection provided by that law, “surrendering a degree of political and social autonomy it [the state] has enjoyed for nearly a century.”   Suspending the law during an election campaign, for the first time in that century, would do serious harm to Montana, the brief argued.

Moreover, the attorney general said, there is no urgency in acting against the state law.   “No one, apparently, had challenged the century-old corporate expenditure law of the Corrupt Practices Act until this case was filed just two years ago,” it said, and it commented that the challengers had not moved swiftly in pursuing their case in court.

In closing, the state urged Justice Kennedy, or the Court, to leave the Montana law in force until it decides whether it will review the state court ruling, and until any final decision emerged.

The state’s opposition brief can be found here.