WE HAVE ONLY BEGUN TO FIGHT?

On June 25, 2012, the U.S. Supreme Court struck down Montana's Corrupt Practices Act.  Our course is clear.  A Constitutional Amendment is now the only way to strike down the Citizens United Decision.

On Petition for Writ of Certiorari to the Supreme Court of Montana June 25, 2012 (Unsigned)

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment and struck down a similar federal law that held “political speech does not lose First Amendment protection simply because its source is a corporation.” The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.  The judgment of the Supreme Court of Montana is reversed.

Justices Breyer, Ginsburg, Sotomayor, and Kagan
dissenting June 25, 2012

In Citizens United v. Federal Election Commission, the Court concluded that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” I disagree with the Court’s holding for the reasons expressed in Justice Stevens’ dissent in that case “technically independent expenditures can be corrupting in much the same way as direct contributions.” Indeed, Justice Stevens recounted a “substantial body of evidence” suggesting that “many corporate independent expenditures . . . had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements.” Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Given the history and political landscape in Montana, that court concluded that the State had a compelling interest in limiting independent expenditures by corporations.

Thus, Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so. Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. (This would allow Montana's law to stand.)

The Briefs of Corporations and Friends

American Traditions Partnership (AKA Western Traditions Partnership) appealed the decision of the Montana Supreme Court to the U.S. Supreme Court asking that the 100 year old ban on corporate contributions be declared unconstitutional.

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The members of the Chamber of Commerce are classified as corporations. Lower courts, including state courts, must faithfully apply the Constitution as interpreted by the U.S. Supreme Court. The Montana ban on corporate political speech is indistinguishable from the federal law declared unconstitutional in Citizens United.  

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Senator Mitch McConnell of Kentucky believes the ruling of the Montana Supreme Court is in direct contravention of the Citizens United decision. Nothing that has occurred since that ruling warrants its reconsideration.

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Citizens United.  The Montana Supreme Court upheld a ban on corporate independent political expenditures in Montana state elections because it said that “unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history.” The U.S. Supreme Court should reaffirm the precedential force of Citizens United and disapprove the Montana Supreme Court’s transparent attempt to evade this Court’s clear mandate.    

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American Traditions Partnership reply brief.    

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The Briefs of Montana and Friends

Montana replied to the challenge from ATP by assuring the U.S. Supreme Court that corporations may form Political Action Committees (PACs) that publicize their campaign expenditures just as other associations of natural persons are required to do.  Free speech is encouraged in Montana both in contributions and disclosure statements.   

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States of New York, Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, North Carolina, Rhode Island, Utah, Vermont, Washington, West Virginia, District of Columbia  The decision of the Montana Supreme Court does not squarely conflict with the rulings of this Court, including Citizens United, or the decisions of other federal courts of appeals. The case raises issues not present in Citizens United.  Montana’s law regulating corporate independent expenditures in state and local elections differs from the federal law struck down in Citizens United.  Montana has not banned corporations from speaking but simply requires a corporation to register a political committee and make expenditures from a segregated fund consisting of voluntary contributions from owners, members, or employees.

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Brennan Center for Justice, N.Y.U. School of Law, provides expertise in constitutional and election law from a common concern with the real and perceived influence of special interest money on American elections.

The Montana case amply supports the constitutionality of Montana's Corrupt Practices Act and its restrictions on corporate electioneering. Developments, publicly chronicled and highlighted in this brief, lead to the conclusion that fundraising and spending by independent expenditure committees can give rise to corruption and the appearance thereof.

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Essential Information believes corporate purchase of elections short circuits the connection between citizens and their government.  Eleventh Amendment immunity bars the Supreme Court from hearing a private suit against a state without its consent. Montana has not given its consent, and Congress has not authorized this suit by 14 th Amendment abrogation of Eleventh Amendment immunity.

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TEAM is dedicated to protection of fundamental special sovereign interests of the states as protected by the Eleventh Amendment of the U.S. Constitution.  Should the Petition for Certiorari be granted, it would violate fundamental principles of states rights and the immunity. Montana has not given its consent to this suit in federal court.

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Walter Dellinger and James Sample promote fair procedures for practice before the U.S. Supreme Court and encourage sound development of constitutional law. Reversing the Montana Supreme Court would be a departure from the traditional practices of the U.S. Supreme Court, cut off development of the law and stand as an unwarranted rebuke to the high court of a coordinate sovereign.

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Montana Trial Lawyers Association, Montana Conservation Voters, Montanans for Corporate Accountability, and Montana League of Rural Voters   Can States regulate corporate political
speech more broadly by the Fourteenth Amendment than Congress is allowed to regulate such speech by the First Amendment?

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Eight retired Justices of the Montana Supreme Court who have run nonpartisan statewide campaigns for election assert there is a compelling state interest in preserving a fair and independent judiciary. Enormous special interest expenditures in state judicial elections are threatening one of the Constitution’s most central guarantees – the right to due process and a fair trial.

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U. S. Representatives Brady, Van Hollen and Lofgren.  As Members of Congress, each has a strong  interest in ensuring that our electoral process is not  corrupted by lack of disclosure, transparency, or accountability in political spending.   

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Free Speech for People, the American Sustainable Business Council, Novak & Novak, Inc., d/b/a Mike’s Thriftway, The American Independent Business Alliance. The Citizens United decision relied on several largely unchallenged assumptions: 1. That unlimited “independent” spending on elections never leads to corruption or the appearance of corruption; second.  2. That corporations are entitled to the same First Amendment rights as actual people.  3. Preventing unlimited expenditures from drowning out the citizens' voices serves no governmental interest.   

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Montana reply brief.  

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Other Briefs concerning Citizens United

Fourteen nonprofit, nonpartisan organizations that support effective campaign finance disclosure laws to ensure transparency and protect the integrity of government. The U.S. Supreme Court invalidated a longstanding federal law prohibiting corporate independent expenditures on the assumption that such expenditures do not give rise to corruption or the appearance of corruption.” But, undisclosed money in politics gives rise to corruption and the appearance of corruption. Current law accommodates close relationships between candidates and “independent” spenders.

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Former officers and employees of the Federal Election Commission and state and local agencies responsible for enforcing campaign finance laws to protect our nation’s elections from the corrupting effects of unrestrained financing of political campaigns. The broad interpretations of Citizens United have resulted in electoral expenditures that are independent only in the sense that they are not “coordinated” with a candidate. “Super PACs” have arisen now that there are no limits on independent expenditures of corporations but limits on other contributors.

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ACLU lists reasons that the Citizens United decision is not working to promote promote fair elections.

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U.S. Senator Sheldon Whitehouse of Rhode Island and U.S. Senator John McCain of Arizona who see the issue as elected officials with knowledge of the effects of unlimited independent election expenditures on our legislative system and our democracy. In light of the huge sums currently deployed to buy candidates’ allegiance, should Citizens United continue to hold sway,” The appearance of corruption undermines trust and participation in our elections, the opportunity for corruption makes the legislative process more difficult, and both diminish the standing of our democracy in the eyes of the world.

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