U.S. Supreme Court blocks Montana ban on corporate election spending

At odds with the high court's 2010 decision
2012-02-17T17:20:00Z 2012-02-28T15:40:28Z U.S. Supreme Court blocks Montana ban on corporate election spendingBy CHARLES S. JOHNSON Gazette State Bureau The Billings Gazette
February 17, 2012 5:20 pm  • 

HELENA -- The U.S. Supreme Court late Friday temporarily stopped enforcement of the Montana Supreme Court's ruling that restored Montana's century-old ban on corporations making independent expenses in campaigns.

The immediate effect of the decision is that for the first time in a century, corporations now can spend unlimited amounts of money in independent expenses on state and local political races in Montana.

U.S. Supreme Court Justice Anthony M. Kennedy granted the request by American Tradition Partnership and two other groups to block the Montana Supreme Court's Dec. 30 decision.

In its motion, American Tradition Partnership asked the court to issue the stay because Montana's June 5 primary elections make it "vital that planning begin now for independent expenditures before the election."

The Montana Supreme Court, in a 5-2 decision, overturned a lower court decision and reinstated the state's voter-passed, 1912 ban on independent spending by corporations in political campaigns.

State District Judge Jeffrey Sherlock of Helena had struck down the Montana ban as unconstitutional under the U.S. Supreme Court decision, Citizens United v. Federal Election Commission. The U.S. Supreme Court's 5-4 ruling overturned a federal prohibition on independent campaign spending by corporations and unions.

The Montana Supreme Court majority said Montana voters passed, by initiative, the Corrupt Practices Act in 1912 to combat the widespread political corruption in the state by the owners of copper mining companies, known as the Copper Kings. The court majority said they had carved out a legal exception to Citizens United ruling.

Donald Ferguson, American Tradition Partnership executive director, and the Doug Lair, its Montana volunteer coordinator, praised Kennedy's decision as "a win for everyone's First Amendment rights."

"Montana's political and media establishment are fighting American Tradition Partnership's grassroots volunteers because free speech threatens their monopoly on political speech in Montana," Ferguson and Lair said in a statement. "As a grassroots-founded, people-powered advocate for rational environmental policies and free speech we will continue to fight the corrupt and lawless political machine in Helena, as well as the anti-jobs radicals at the Sierra Club who want to kill pipelines and progress itself."

Montana Attorney General Steve Bullock, who argued on behalf of the state before the Montana Supreme Court, had this response to the Supreme Court order Friday:

"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.

"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."

Kennedy ordered the Montana Supreme Court's Dec. 30 ruling put on hold until the U.S. Supreme Court receives in a timely way and acts on American Tradition Partnership's request to appeal the Montana Supreme Court ruling. That request is known as a petition for a writ of certiorari. It is not automatic that the Supreme Court must accept the request for an appeal.

"Should the petition for a writ of certiorari be denied, this stay shall terminate automatically," Kennedy wrote. "In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this court."

Kennedy was the author of the majority opinion in the Citizens United decision.

U.S. Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer, both dissenters in the Citizens United case, joined Kennedy's order.

Ginsburg, with Breyer agreeing, wrote: "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.' " She quoted from the Citizens United majority opinion.

"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."

Ginsburg said because lower courts are bound to follow the U.S. Supreme Court's decisions until they are withdrawn or modified, she would vote to grant the stay.

Jonathan Motl, a Helena attorney who filed a friend-of-the-court brief before the Montana Supreme Court for Free Speech for People and some other groups defending the 1912 law, was encouraged by Friday's order.

"This could be good because if the Supreme Court denies cert, Montana's law is no longer stayed," he said. "However, if cert is granted, the Supreme Court will revisit and perhaps undo the damages caused by its earlier (Citizens United) decision," Motl said.

Motl said he believes Justice Kennedy wants to revisit Citizens United case because he could have granted the stay without involving the court, but chose to do so.

American Tradition Partnership Inc., based in Washington, D.C., bills itself as "a no-compromise grassroots organization dedicated to fighting the radical environmentalist agenda." It previously was called Western Tradition Partnership.

Joining the group in the challenge to the Montana law were Champion Painting Inc. of Bozeman and Montana Shooting Sports Association Inc. of Missoula.

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