Citizens United Part II: Montana Supreme Court Collides With U.S. Supreme Court

The fate of Montana's century-old ban on corporate political spending is now in the hands of the U.S. Supreme Court, setting up a possible sequel to the hotly contested Citizens United decision handed down two years ago.

In 2010, a five-member majority of the U.S. Supreme Court declared that corporations' independent spending in elections does not corrupt -- or even appear to corrupt -- the political process. On Wednesday, Montana Attorney General Steve Bullock submitted a brief to the Court with facts that suggest otherwise as he urged the justices to uphold his state's ban on corporate political spending.

The case, Western Tradition Partnership v. Bullock, comes up from the Montana Supreme Court , which in December adopted the attorney general's arguments to hold that the state's history of corporate-driven corruption dating back to the Gilded Age justified that Montana's Corrupt Practices Act is still valid . The law, passed by voter referendum in 1912, says that a "corporation may not make ... an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party."

Last week, American Tradition Partnership (formerly known as Western Tradition Partnership) and the two other corporations that originally brought suit in Montana courts against the Corrupt Practices Act filed a stay application with Justice Anthony Kennedy to suspend the state supreme court's judgment and refer the case to his colleagues for reversal. James Bopp Jr. , a committed foe of campaign finance laws and architect of the Citizens United litigation, is representing them.

Because "Montana's primary elections are on June 5, 2012," wrote Bopp, "[i]mmediate relief is needed to prevent irreparable harm to the Corporations' First Amendment free-speech right" to make independent campaign expenditures. Normally, those petitioning for Supreme Court review call themselves "Petitioners." Bopp, however, chose to refer to his clients as "the Corporations," suggesting that there is no shame in advocating for entities whose political spending has become the focus of partisan controversy since Citizens United.

"The Montana Supreme Court held the Ban constitutional despite the holding in [Citizens United] that '[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations,'" Bopp argued to Justice Kennedy, quoting from Kennedy's own opinion from the landmark 2010 case. "The lower court's refusal to follow Citizens United is such an obvious, blatant disregard of its duty to follow this Court's decisions that summary reversal" - that is, upending the lower court's judgment without full briefing and oral argument, and sometimes without an opinion - "is proper."

Bullock, however, retorts in his brief that such an accusation "can only be true if the facts are irrelevant." And the record, Bullock argues, "shows the [Corrupt Practices] Act imposes far different obligations, and therefore affects corporate speech in a far different manner, than the federal law at issue in Citizens United."

For example, whereas the federal laws process for corporations to register and report their donations through separate political action committees put an unconstitutional burden on corporate speech rights, Bullock said, the Corrupt Practices Act merely requires political committees regardless of corporate status to file a simple initial two-page disclosure form and short-form disclosures of subsequent expenditures."

In addition, Bullock reiterates the Montana Supreme Court's finding that the law was a justified response to "an extraordinary history of political corruption by out-of-state foreign corporations and interests in the years leading up to the aptly-named Act, maintaining an extraordinarily accessible government in a sparsely populated state, and preserving citizens' control of and confidence in an elected judiciary."

Still, it seems unlikely that five justices on the U.S. Supreme Court will accept Bullock's argument -- or even, at the very least, his request for full briefing and hearing -- as Montana Justice James Nelson noted in a dissent from his court's opinion nearly two months ago.

"The language of the Citizens United majority opinion is remarkably sweeping and leaves virtually no conceivable basis for muzzling or otherwise restricting corporate political speech in the form of independent expenditures," Nelson wrote. "I disagree with the Court's decision to parse Citizens United in a fashion so as to 'send a message' to, or be the next 'test case' before, the Supreme Court," Nelson continued. He concluded that "[w]hen this case is appealed to the Supreme Court" -- as it now has been -- "a summary reversal on the merits would not surprise me in the least."

Summarily deciding the case with a short note that the Montana court's judgment was inconsistent with Citizens United may be the safest way for the five justices in the Citizens United majority to avoid Bullock's fact-based challenge to their ruling. Indeed, Justice Nelson, despite feeling duty-bound to stand by Citizens United, lambasted the Court's conclusion as "utter nonsense" and "smoke and mirrors."

In January, the Court showed its willingness to sidestep another would-be Citizens United sequel , affirming without argument or opinion a lower court's judgment that foreign nationals cannot make campaign expenditures. Citizens United explicitly prohibits "restrictions distinguishing among different speakers, allowing speech by some but not others," the Court said.

Still, should the Court take Bopp and Justice Nelson's advice and summarily reverse the Montana Supreme Court, do not expect the Court's debate over unlimited corporate political spending to end quietly. The justices who dissented in Citizens United may feel compelled in this election year to quote on the record Justice Nelson's trenchant critiques of the two-year-old decision's reasoning.

"In the real world of politics, the 'quid pro quo' of both direct contributions to candidates and independent expenditures on their behalf is loyalty," Nelson wrote. "And, in practical effect, experience teaches that money corrupts, and enough of it corrupts absolutely."