Will Montana's Anti-Citizens United Stance Blow Up in Its Face?

Last December the Montana Supreme Court issued a decision upholding the state's century-old ban on political spending by corporations. As I noted in a column last week, this ruling directly contradicts the U.S. Supreme Court's 2010 ruling in Citizens United v. F.E.C., which nullified a nearly identical federal restriction on political spending by corporations and unions. The Montana court didn't let that pesky First Amendment precedent get in its way, however, and the state justices went ahead and upheld the campaign finance law. The U.S. Supreme Court is now deciding whether to summarily reverse that ruling or hear an appeal in the case.

At first glance, this might all sound like good news to critics of the Citizens United ruling. After all, if the Supreme Court does agree to take up the case, campaign finance advocates would get a shot at convincing the Court to limit or possibly even overturn Citizens United. Shouldn't foes of Citizens United be happy about this turn of events?

At least one prominent supporter of campaign finance legislation thinks not. Writing at his Election Law Blog, UC Irvine law and political science professor Rick Hasen worries that if the Supreme Court does agree to hear an appeal in the Montana case, campaign finance reformers might not be so pleased with the outcome. He writes:

The betting here seems to be that this will allow for a full airing of the claims against how Citizens United has worked out so far, and the outside chance of peeling off Justice Kennedy from the majority.

What this calculation doesn't include is the possibility that the Court could actually make things worse if this goes to a full hearing and there is a majority opinion.  (And believe me, it could get even worse, such as having the Court express doubts about the constitutionality of contribution limits applied to corporations or in other ways).

According to its electronic docket, the Supreme Court is scheduled to consider the future of the case at a private conference of the justices on June 14. Montana may soon learn if its attempt to bypass Citizens United is going to blow up in its face.

Comments

[Mike M.]

Montana sure is one strange state. The political reality there is so different from the image I always picture in my mind.

[Drake]

And it has a face - really strange.

[Michael P]

With respect to Prof. Hasen, I would be shocked if the Supreme Court used this opportunity to broaden its decision in Citizens United in any way except to make it clear that state laws are restrained as much as federal laws. There doesn't seem to be any need for them to reach broader questions of corporate spending limits, and courts are generally leery of going farther than they must.

[Tom Beebe]

Would you support this idea for an amendment to clean up campaign financing without compromising individual free speech?

TOM BEEBE'S AMENDMENT

No candidate for the Presidency or either house of Congress shall accept contributions in cash or in kind from any organization or group of persons for expenses incurred in a campaign for that office. All such contributions shall be made only by individual citizens who shall attest that the funds or other items of value are from their own resources and that they have not received, nor have they been promised, offsetting items of value from any other party in exchange for their contribution. The identity and extent of contributors to such campaigns shall be made public for a period of thirty days from receipt before being employed or used as collateral for a loan by such campaigns. Organizations of any type may, without restriction, expend money to advocate a position on any issue before or likely to come before the electorate insofar as no candidate's name or description is included in their expressions of advocacy.

[Raston Bot]

nope.

[NoVAHockey]

No

[Sevo]

Not a chance in hell.

[Emmerson Biggins]

Organizations of any type may, without restriction, expend money to advocate a position on any issue before or likely to come before the electorate insofar as no candidate's name or description is included in their expressions of advocacy.

I might have been able to consider it without this clause.

With this clause though, if me and one friend pool our money to buy a commercial on the morning zoo drive in show and we tell you who we think you should vote for, you want to send federal marshals in with guns and lock us in a cage. That's evil.

[HazelMeade]

I don't see the problem with it as this restriction alreayd exists. And even if they can't say so, everyone knows who they want you to vote for anyway.

[16th amendment]

OK, so the left thinks that the absence of campaign finance laws promotes corruption. Maybe so. But the presence of campaign finance laws promotes even more corruption, because government will become even more entrenched.

The other idea of prohibiting outside money in any election is not sound either because it insulates communities and prevents them from change. Throughout history, isolated communities far away from the sea, far up on hills have been the most backward.

[ant1sthenes]

Corruption only exists if the politician feels beholden to the donor in such a way as to override his loyalty to his constituents. It would make more sense to simply create an escrow account for every politician that had ballot access, and require that all direct campaign donations be to the escrow account and be kept anonymous. Donors identities could also be shielded from those keeping the account, where feasible.

But it's not really relevant to Citizens United, which involved a corporation producing a movie criticizing a (then primary) political candidate, rather than a donation to a specific campaign.

[16th amendment]

One thing I observe about the amendments is that they restrict government or give people/corporations rights. You can say the 11th gives states rights. Some of them are technical. The 16th (income tax) gives the government a right and restricts the rights of people, as does the 18th (alcohol prohibition). The 18th was later repealed, as I think the 16th should be.

Your amendment also restricts the rights of people, and thus gives the government rights, and thus it does not belong in the constitution.

[Tom Beebe]

I agree with your philosophy, and have embodied it in my broadre plan for reform which starts out: "1. The federal government shall collect no taxes other than provided in this act. The federal government shall make no payment to any person, group or other entity except in return for goods or services rendered to it, or as provided for in this act." I'd like to share it and discus the narrow issue of campaign finance and group vs. individual rights further. Send me a request to [e-mail]. I promise no other use of your email.

[Tom Beebe]

I agree with your philosophy, and have embodied it in my broadre plan for reform which starts out: "1. The federal government shall collect no taxes other than provided in this act. The federal government shall make no payment to any person, group or other entity except in return for goods or services rendered to it, or as provided for in this act." I'd like to share it and discus the narrow issue of campaign finance and group vs. individual rights further. Send me a request to [e-mail]. I promise no other use of your email.

[buntpunt]

Sounds like a plan to me dude. WOw.
http://www.Anon-Soft.tk

[buntpunt]

I never really thought about it liek that dude.

http://www.Privacy-Apps.tk

[Tom Beebe]

My reasons for this amendment

Organizations of any type include corporations, unions, gun rights advocates, environmental protection groups, even "Susie's Flower Shop", a theoretical small business cited in the Citizen's United Case.
The intent of the above is to bring "transparency" to campaign financing by removing any group from the process whereby that group may conceal the identity of an individual contributor as well as limiting the influence of such groups or "special interests". It further prevents an organization from making such contributions when an individual within that organization, such as a union member or corporation stockholder, may oppose the candidate. Considering the large equity position in certain corporations that the federal government has recently taken in response to the economic crises, this is particularly important in excluding such influence. The money from "special interest" groups will then go to promote that for which they exist, their "special interest". The media will be directed to expositions on the issues facing the electorate, thus enhancing discussion and hopefully understanding of issues, bereft of personalities. To those advocating public financing I would suggest that with money comes control. Do we want government control of the electoral process?

[Romulus Augustus]

Why transparency for contributions?
If I was an employer, I might be more angry (and retaliatory) if I knew my employee X was donating money to a candidate whose policies were hurtful to my business. The ballot is secret to ensure such retaliatory measures are less likely. Why expose contributors to abuses that mere voters are shielded from?

[mad libertarian guy]

Why expose contributors to abuses that mere voters are shielded from?

So that those who contribute the wrong way can be adequately dealt with. There is no other explanation.

[Apatheist ?_??]

Organizations are just groups of individuals. Your law would violate their freedom of association and speech.

[Tom Beebe]

I submit that the greatest threat to our liberty comes from corruption. In turn, corruption comes, in part, from politicians placing their contributors interests above those of "the people". The present system makes contributions more important than votes. However, would you support the "individausl only" segment om my proposal without the "full revelations" part? The latter is already in law, albeit poorly enforced.

[Sevo]

You're missing the obvious solution: Limit government power, and the reasons for buying it are reduced.
Any attempt at limiting the buyers only invited more corruption.

[mad libertarian guy]

He's not missing it.

[Tom Beebe]

thank you, MadLib. I have offered another plan for reform of both taxes and transfer payments. it states, in part, that the government shall make no payment to any individual or other entity except in return for goods and services received. does that address your concerns? No grants, no subsidies, etc. Of course the tax reform portion has to and does exclude and deductions for special interests. email me [e-mail] for further details.

[Sevo]

"it states, in part, that the government shall make no payment to any individual or other entity except in return for goods and services received. does that address your concerns?"

Nope. Public housing is a good. Stuff 'sold' for food stamps (including dope) is a good.

[Tom Beebe]

Sevo, even public housing can be addressed by my proposed plan which includes a negative income tax, an idea first proposed by Daniel Patrick Moynihan; yes the same who layer became a Democrat Senator from New York. Email me for the plan, it's only one page!

[Sevo]

Tom Beebe|5.31.12 @ 10:19AM|#
"My reasons for this amendment..."
All bad.

"To those advocating public financing I would suggest that with money comes control. Do we want government control of the electoral process?"
Agreed.

[Tulpa the White]

The betting here seems to be that this will allow for a full airing of the claims against how Citizens United has worked out so far, and the outside chance of peeling off Justice Kennedy from the majority.

The main negative effects I've noticed have been nonstop fallacy-riddled ads from Obama surrogates here in PA.

Seriously, what negative effects are alleged to have occured?

[mad libertarian guy]

People with whom Team BLUE doesn't agree have been free to say stuff. And stuff.

[HazelMeade]

How about this as an alternative?
All campaign funding must come from inside the relevant district. No out of state money in statewide elections, no out of district money in congressional elections, no money from outside the county or city in city council elections. Political parties included, so parties can't offer money to congressional candidates.

Independent spending would probably have to remain unrestricted, but you could keep the bar on explicitly advocating for or against a specific candidate.

[Tom Beebe]

How would this be enforced/regulated?

[DoubleIPA]

Should there be any campaign financing restrictions at all (with regards to contributions from US based contributors)? If yes, then why let corporations contribute since essentially it'll most likely come down to the person at the top and that means they get to contribute to their candidate of choice twice. If no, then it makes no difference except in Montan.

[Tom Beebe]

Double, did I not address this (see above). The "person at the top" can be at the top of a corporation, union, Elks chapter, you name it. that's why I advocate individual contributions only. What's your thoughts on that idea?

[Sevo]

DoubleIPA|5.31.12 @ 12:44PM|#
"Should there be any campaign financing restrictions at all..."

Answer: No.
A-1: "Congress shall make no law..."

[Tom Beebe]

Good point Sevo. That's one of two reasons I submit my proposal as an amendment. I would expect (and hope) my idea would get shot down by SCOTUS if proposed as a simple act of congress. But an amandment gets a thorough vetting by state legislatures, et al.

[Tulpa the White]

Montana doesn't have a Congress.