The Montana Supreme Court on Friday put to work its own view of what the Supreme Court had decided in the controversial ruling allowing massive corporate spending in political campaigns, and came out differently: the state court 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. One of the dissenters predicted that the ruling would not survive an inevitable appeal to the Justices, and might be overturned without even a close look.

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.”

The McGrath opinion provided a vivid chronicle of the days in Montana’s past when the so-called “Copper Kings” bought and sold politicians and judges in the way that other people buy and sell consumer goods (a comparison that the majority attributed to Mark Twain). It noted that the states’ voters had had enough of that corruption, so they used their newly acquired initiative power in 1912 to pass the ban on corporate political spending.

“When in the last 99 years,” the Chief Justice asked, “did Montana lose the power or interest sufficient to support the statute, if it ever did?” Even if the ban on corporate financing of campaign activity had in fact “preserved a degree of political and social autonomy,” the opinion said, that was no reason to “throw away its protections.” A state, McGrath wrote, would not repeal its murder prohibition just because the homicide rate went down.

“Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government,” the majority found.

Besides noting that individual contributions to candidates generally go down in states that allow unlimited corporate spending, the majority also concluded that the financial power of corporations in politics can be a corrupting influence in the election of state judges, threatening the independence of the judiciary.

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.

Here is the actual language of the ban at issue in the case: “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.” Even though the phrase “in connection with a candidate or political committee” might suggest that the ban only applied to money outlays that were coordinated with a candidate or a candidate organization, that is not the way the state Supreme Court read it. It treated it as a ban on any use of corporate treasury money to try, independently, to promote or attack a specific candidate.

The law left corporations with the freedom to set up a separate political fund to spend on campaigns, but only if the money in the fund was given voluntarily by an employee, shareholder, or corporate member. Although the Supreme Court in the Citizens United case had found that the availability of a separate political action committee (PAC) for a corporation was not a sufficient substitute for a right to spend freely from its own treasury, since a PAC was hard to create and maintain, the Montana court said the state’s law made it easy to create a corporate PAC.

Recommended Citation: Lyle Denniston, A Citizens United sequel: different result, SCOTUSblog (Dec. 30, 2011, 8:05 PM), https://www.scotusblog.com/2011/12/a-citizens-united-sequel-different-result/