Mont. AG's brief to U.S. SC over election law due

Jessica M. Karmasek May 18, 2012, 1:35pm


WASHINGTON (Legal Newsline) - Montana Attorney General Steve Bullock is expected to file a brief to the U.S. Supreme Court Friday, asking it to uphold a state election law.

In March, a petition for a writ of certiorari was filed by a group of corporations, led by American Tradition Partnership Inc., asking the nation's high court to review a decision by the Montana Supreme Court in favor of the state's Corrupt Practices Act.

The corporations had filed a lawsuit challenging the act, which prohibits corporate contributions in state political campaigns.

In their petition, the corporations argue that the Montana decision was in conflict with both the U.S. Supreme 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.

In turn, they want the Court to overturn Montana's ban and to reverse the ruling by the state Supreme Court that upheld it.

Bullock's response was originally due April 27. However, according to the case's docket, an order extending the time to file a brief was granted April 12.

Bullock now has until the end of the day Friday to file his response to the petition.

No doubt he will try to convince the Court to uphold the state Supreme Court's ruling, which held that the U.S. Supreme Court's decision on corporate campaign spending is not in conflict with the state's own law.

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 that 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.

Bullock, in a January interview on veteran talk radio host Ed Schultz's "The Ed Show" on MSNBC, 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 Schultz. "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, who serves as senior counsel for the Democracy Program at the Brennan Center for Justice at New York University School of Law, said in a column Thursday that the nation's high court "should heed" the attorney general's argument.

"Montana's history demonstrates the corruption that blooms when corporations can spend without limit to capture government. The state's history demonstrates again and again why the anti-corruption law should stand," he wrote for Politico.

"Indeed, a close review of the case shows that the Court would be well-served to revisit -- and substantially narrow -- Citizens United."

From Legal Newsline: Reach Jessica Karmasek by email at

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