Montana Supreme Court Rejects Citizens United
On December 30, the Montana Supreme Court ruled that the United States Supreme Court’s holding in Citizens United v. FEC, which recognized corporate political speech rights, did not apply in Montana. The court held that a “Montana Exception” exempted compliance with Citizens United because of the state’s supposedly unique political, historical and demographic characteristics. The plaintiffs—consisting of both nonprofit and for-profit corporations—have retained the successful Citizens United attorney and 2009 Republican Lawyer of the Year James Bopp, Jr. for the United States Supreme Court appeal.
Although the majority conceded two central premises of Citizens United: (1) corporations have First Amendment protections; and (2) PACs are not a constitutionally permissible alternative to banning independent political expenditures), the majority nonetheless insisted the government had met its burden to uphold the speech-restricting law by cataloging all the criteria that make Montana supposedly particularly susceptible to corruption. These “atypical” characteristics included its history, rural population, abundant natural resources, destination as a transportation corridor and traditionally low campaign costs.
The primary dissent rejected the majority’s “Montana Exception” rationale noting Citizens’ broad language: “no sufficient government interest justifies limits on political speech of nonprofit or for profit corporations.” In fact, the dissent demonstrated that Citizens United itself had considered and rejected all of the “unique” criteria on which the majority had relied. Further, the dissent concluded even if all of the factors the majority cited did make Montana particularly susceptible to corporate influence, Citizens United had specifically rejected the state’s chosen remedy of outright banning independent political expenditures. Again, quoting broad language from Citizens United:
We must give weight to attempts by [the legislative branch] to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy.
Finally, the dissent aptly noted the real possibility Citizens United would be “state lawed” out of existence by incumbent state-level politicians eager to maintain control of the political dialogue by restricting corporate speech rights in state and local elections.
One such politician is Montana’s Democrat Attorney General, Steve Bullock, who personally represented the state in defending the challenged law and who is now running for governor. Mr. Bullock convinced the court to adopt his “Montana Exception” legal theory; the United States Supreme Court may not agree. He was correct on one aspect of the state’s “uniqueness,” however; while twenty-four states had laws affected by the Citizens’ decision, nine have repealed or suspended them, only one—Montana—has defended it. The United States Supreme Court may soon decide Montana is also unique in being the state that unwittingly strengthened First Amendment protections for corporate speech, by refusing to heed the Citizens United holding.