Montana's Misguided Attempt to Nullify Citizens United
State officials may not like it, but they're still bound by the First Amendment.
Western Tradition Partnership, Inc. v. Attorney General of Montana should have been an easy case for the Montana Supreme Court. At issue was the state's 99-year-old ban on corporate spending in political campaigns. Because the U.S. Supreme Court had struck down a nearly identical federal restriction on political spending by corporations and unions for violating the First Amendment in Citizens United v. Federal Election Commission (2010), the Montana court was duty-bound to follow this precedent and nullify the state law.
But instead something else happened. "Unlike Citizens United," the Montana court asserted in its ruling last December, "this case concerns Montana law, Montana elections and it arises from Montana history."
It's a clever argument, but it doesn't hold up. Since its 1925 decision in Gitlow v. New York, the Supreme Court has held that the First Amendment applies to both federal and state governments. That's because the 14th Amendment, which declares that no state shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," incorporates the First Amendment (and other protections from the Bill of Rights) against the states. Montana officials may not like it, but they're bound to obey the First Amendment just like every other state is bound to obey it. And as the Supreme Court held in Citizens United, the First Amendment protects the right of corporations and unions to spend money on political campaigns.
Indeed, in a sharply-worded dissent, Montana Supreme Court Justice James C. Nelson openly rebuked his colleagues for letting their personal preferences trump their basic judicial responsibilities. "I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana's political process," Nelson wrote. "The problem, however, is that regardless of how persuasive I may think the Attorney General's justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so."
Western Tradition Partnership (now known as American Tradition Partnership), the conservative interest group that lost the case, promptly appealed the ruling to the Supreme Court, which issued a stay in February preventing the decision from taking effect. The Court is now receiving legal briefs from each side and deciding whether to summarily reverse the Montana court or hear an appeal.
At least two justices think the Court should take the case. In a statement attached to February's stay order, Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, argued that hearing the case "will give the Court the opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."
By "huge sums" Ginsburg was most likely referring to recent political spending by so-called super PACs, which are allowed to raise and spend unlimited amounts of money so long as they do not coordinate their activities with a political campaign. Yet as Floyd Abrams, the celebrated First Amendment attorney whose resume includes the landmark Pentagon Papers case, makes clear in a friend of the court brief he recently submitted to the Court in favor of American Tradition Partnership, Ginsburg's fears have little relevance to the constitutional issue at hand. Not only is the Montana decision "in direct contravention" of Citizens United, Abrams writes, but "nothing that has occurred since that ruling warrants its reconsideration."
As Abrams points out in the brief, today's super PACs are overwhelming funded by wealthy individuals, not by corporations or unions, and wealthy individuals have been free to make such unlimited expenditures since the Court's 1972 campaign finance decision in Buckley v. Valeo. If you're worried about the rise of super PACs, in other words, Citizens United is not your culprit.
Moreover, as my colleague Jacob Sullum recently explained, there's good reason to believe that super PACs have had a positive impact on the American political scene. They "have made races less predictable and more interesting," Sullum notes, pointing to the surprisingly contentious GOP presidential contest, "giving a boost to candidates who otherwise would have been crippled by a lack of money."
So not only did Montana's high court blatantly ignore binding Supreme Court precedent, the post-Citizens United political landscape features more speech and more choice at the ballot box. Isn't that what democracy is all about?
The Supreme Court should heed the words of dissenting Montana Justice James C. Nelson and send the state law to its grave.
Damon W. Root is a senior editor at Reason magazine.
