Montana’s attorney general, urging the Supreme Court to take its time before barring states from regulating big-money campaign spending, argued Wednesday that the Court has left states with an option to police political finances when local conditions justify it. At issue in a pending case is the fate of a century-old Montana law that imposes a flat ban on corporations’ spending of their internal funds to try to influence elections. The state’s opposition brief can be found here.
Justice Anthony M. Kennedy is studying a request by three Montana corporations 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. The Montana corporations also are asking, in the meantime, that the state court ruling be put on hold. Justice Kennedy 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.
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.”
Reacting to the Montana corporations’ argument that the Supreme Court has allowed restrictions on corporate political spending only to protect against outright bribery, the 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.
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