Corporations fighting Mont. election law file petition with U.S. SC

Jessica M. Karmasek Mar. 30, 2012, 8:30am


WASHINGTON (Legal Newsline) - Earlier this week, a group of corporations asked the U.S. Supreme Court to review a decision by the Montana Supreme Court upholding a state election law.

On Monday, the corporations, led by American Tradition Partnership Inc., filed a petition for a writ of certiorari with the nation's high court.

In their petition, the corporations argue that the Montana decision was in conflict with both the Court's holding that corporations could not be banned from doing core political speech and the Court's reasoning that the independence of such speech eliminated any risk of corrupting candidates.

James Bopp Jr., of The Bopp Law Firm in Terre Haute, Ind., and lead counsel for the corporations, said, "If Montana can ban core political speech because of Montana's unique characteristics, free speech will be seriously harmed.

"Speakers will be silenced because of corruption by others over a century ago or because Montana candidates have traditionally spent little money on their campaigns. This puts speakers at the mercy of others and of past actions over which they have no control. The First Amendment's protections cannot be so conditioned."

In the filing, Bopp urges the Court to overturn Montana's ban and to reverse the ruling by the state Supreme Court that upheld it.

In December, the Montana Supreme Court ruled that a U.S. Supreme Court decision on corporate campaign spending is not in conflict with the state's own law.

Earlier this month, the U.S. Supreme Court granted a stay of the Montana high court's decision "pending the timely filing and disposition of a petition for a writ of certiorari."

The Court said should the petition for a writ of certiorari be denied, the stay will terminate automatically.

If the petition for a writ is granted, the stay will terminate upon the issuance of a mandate by the Court, it explained.

Justice Ruth Bader Ginsburg, along with Justice Stephen Breyer, said in their one-page order that they would be happy to take another look at their 2010 Citizens United decision.

"Montana's experience, and experience elsewhere since this Court's decision in Citizens United v. Federal Election Commission make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption,'" they wrote.

"A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."

In Montana, the group of corporations filed a lawsuit challenging the state's Corrupt Practices Act, which prohibits corporate contributions in state political campaigns.

In 2010, the U.S. Supreme Court held that corporate funding of independent political broadcasts in candidate elections cannot be limited because of the First Amendment.

Citing the decision, a Montana state court declared the CPA unconstitutional, but the state's Supreme Court overturned that decision Dec. 30, 2011.

The U.S. Supreme Court's 5-4 ruling in favor of Citizens United stemmed from a dispute over whether the non-profit corporation could air a film critical of current U.S. Secretary of State Hillary Clinton.

The decision infuriated President Barack Obama, who criticized the majority in a State of the Union Address.

Obama said the ruling would "open the floodgates for special interests to spend without limit" in elections.

The ruling overturned a ban on spending in support of or in opposition to a candidate -- i.e. advertising -- but kept intact a law that forbids companies from donating funds directly from their treasuries to candidates.

In light of the U.S. Supreme Court ruling, most states with laws on corporate spending bans stopped enforcing their own restrictions.

That is, all but one -- Montana.

Montana Attorney General Steve Bullock had expressed mixed feelings on the U.S. Supreme Court's decision to grant a stay in the case earlier this month.

"While I'm disappointed that for the first time in 100 years Montanans won't be able to rely on our corporate spending ban to safeguard the integrity of our elections, I am encouraged that the Supreme Court will give this careful consideration and I look forward to continuing to fight for Montana in defending our century-old law," he said in a statement.

"For more than a century, anyone has been able to participate in Montana elections -- even out-of-state corporate executives. All we required is that they used their own money, not that of their stockholders, and they disclosed who they are."

In a previous interview on veteran talk radio host Ed Schultz's "The Ed Show" on MSNBC, Bullock admitted there is a chance that the U.S. Supreme Court could strike down the case.

"At the end of the day, the Citizens United decision dealt with a completely different electoral system -- the federal elections and federal laws," he told viewers. "But the vast majority of elections are at the state and local level.

"There are real differences there. That's what we pushed, and I think that the Court would recognize that."

Adam Skaggs, senior counsel at the Brennan Center for Justice at New York University's School of Law, on Tuesday urged the Court to uphold the ban.

"The Montana Supreme Court was right to uphold the state's law banning corporate money in elections. The state's experience with corruption, and the flood of super PAC spending today, makes clear that corporate spending in elections can give rise to the appearance and reality of corruption," he said in a statement.

"The Supreme Court has an opportunity to reconsider the real-world consequences of Citizens United, and the devastating effect it has had on our democracy. The Court can improve confidence in our electoral system by reconsidering or narrowing the ill-conceived Citizens United opinion, which gave rise to the candidate-specific Super PACs that are dominating this election and making a mockery of reasonable campaign contribution limits."

From Legal Newsline: Reach Jessica Karmasek by email at

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