Western Tradition Partnership, Inc. v. Attorney General

PARTNERSHIP, INC., TRADITION WESTERN registered corporation of Montana, in the State INC., a Montana PAINTING, CHAMPION corporation, MONTANA SHOOTING SPORTS corporation, ASSOCIATION, INC., Appellees and Plaintiffs, Cross-Appellants, v. Montana, GENERAL of the State

ATTORNEY THE COMMISSION COMMISSIONER OF PRACTICES, FOR POLITICAL Appellants. Defendants DA 11-0081. No. Argued September Submitted 30, 2011. Decided December 2011 MT 328. 363 Mont. 220.

271 P.3d 1. Appellants: For Steve (argued), Bullock Attorney Montana General; Anthony Johnstone, Solicitor, Molloy, James P. Assistant General, Attorney Helena.

For Appellees: Margot Barg E. (argued); Firm, P.C., Wittich Law Bozeman.

For Amici Curiae: Amy Poehling Eddy; Bottomly, Eddy & (for Sandler, Kalispell former Montana Court Justices Hunt, Sr., William E. W. William Leaphart, James M. Regnier, Terry N. Trieweiler and Warner); John Anderson, Lawrence A. Attorney (for Law, at MTLA, Great Falls Voters, Montana Conservation Montanans for Corporate Accountability, League and Montana Voters); Rural Elizabeth L. Griffing, Attorney Law; Kraft, at Erin Student, (for Clinic University Montana, Missoula ACLU of Foundation); Montana Motl; Sherwood, Jonathan Morrison Motl & Helena; Jeffrey Clements, Office, LLC, Concord, D. Clements Law (for Speech Massachusetts Free for People; American Sustainable Council; Novack, Inc., Business Novak and Thriftway; d/b/a Mike’s Business Independent Resource, Inc., and The American Home (for Law, Helena Mackin, Attorney Alliance); Mark League); Karl J. Power Group Peoples Research Public Interest Sandstrom, P.C., Missoula; Karl J. Englund, Karl J. Englund, Liburdi, Janies A. D.C.; T. LLP, Michael Washington, Coie Perkins (for Phoenix, LLP, Arizona Peters, Perkins Coie Ahlers, L. Jerica Management LLC; Asset Trillium Investments Domini Social On Investment; Interfaith Center Newground Social Corporation; Investments, Inc.; The Harrington Responsibility; Corporate Coolidge; Calvert Asset & Sustainability Group Loring, Wolcott Foundation, Reynolds Inc.; Christopher The Company, Management Trust & a Division of Boston Management, Inc.; and Walden Asset Law, Bruner, Attorney at Company); Lee Management Investment (for Law, Alexandria, Virginia Dickerson, Attorney at Butte; Allen Politics). Competitive Center for the Court. Opinion McGRATH delivered

CHIEF JUSTICE Montana and the Commissioner Attorney General of Court’s Order on Cross- from the District appeal Political Practices 18, 2010. We reverse. Summary Judgment filed October Motions for AND FACTUAL BACKGROUND PROCEDURAL (WTP), Champion Painting Partnership Tradition Western (MSSF) sued the Montana Shooting Sports Foundation seeking Practices and the Commissioner of Political Attorney General of 13-35-227(1), MCA, their freedom violated a declaration § United States and Montana Constitutions protected by the of or by corporations on behalf political expenditures prohibiting filed cross-motions public parties for office. opposing candidates supporting materials. summary judgment along with briefs for unconstitutional, granted declared the statute The District Court summary judgment and denied summary judgment plaintiffs for the enjoined enforcement of defendants. The District Court to the State for an Champion motion of and MSSF the statute and denied the summary of the order attorney appeals fees. The State award and MSSF cross- Champion judgment plaintiffs, favor attorney for fees. request from the denial of their appeal OF REVIEW STANDARD summary court’s decision This Court reviews a district under M. R. the district court using the same standards as judgment summary judgment there are cross- motions Civ. P. 56. Where issues, upon only the district court is not called to resolve factual but law, conclusions of draw we review to determine whether those City 93, 15, conclusions are MT of Kalispell, correct. Bud-Kal v. ¶ 350 Mont. 204 P.3d Accordingly, moving party a is entitled to summary judgment there genuine when are no issues of material fact moving party and the is entitled judgment as a matter oflaw. Town Country City Bozeman, 72, 12, 349 & Foods v. MT Mont. ¶ enjoy constitutionality, P.3d 1283. Statutes presumption constitutionality a decision on the of a subject plenary statute is Albert, City Billings 63, 11, 349 400, 203 review. v. 2009 MT Mont. ¶ P.3d 828.

DISCUSSION 13-35-227, MCA, Section originally was enacted as an initiative by the Montana voters in 1912. It provides:

(1) A corporation may not make a contribution or an expenditure in connection political with a candidate or a committee that supports opposes or candidate or a party.

(2) A person, candidate or political may committee not accept (1). or receive a contribution described in subsection (3) This section does not prohibit the establishment or administration of a separate segregated fund to be used for making political expenditures contributions or if the fund consists only voluntary contributions solicited from an individual who shareholder, is a employee or member of the corporation.

(4) A person subject who violates this section is to the civil penalty provisions of 13-37-128. 13-37-128, MCA,

Section provides sanction for a violation of §13- 35-227, MCA, and allows Commissioner of Political Practices to penalty recover a civil up triple the amount of the $500 unlawful A expenditure. corporation may separate segregated establish a fund called a committee or political expenditures PAC to make ‘if the fund consists of voluntary contributions solicited from an shareholder, individual who is a employee, or member corporation. 13-35-227(3), Section MCA.Montana lawrequires that all political communications must include the name and address of the person entity or that paid 13-35-225, for the communication. Section MCA. Inc., Champion Painting, incorporated is under

¶5 the laws of It a single proprietor painting Montana. is and drywall business with is Kenneth members, its sole shareholder and no or employees Mr. in this action. corporation It is the business Champion. supporting county politics, and state active Champion personally editor, and letters to the through blogs, candidates opposing issues speak that he wants to Champion states speeches. spend corporation corporation his wants spokesman as a for candidates. He believes oppose or independently support funds to §13-35-227(1), by MCA. prohibited be doing so would support and voluntary persons association of who MSSA is a education, facilities shooting safety, shooting sports, promote firearm incorporated provide It in 1990 to rights. Amendment was and Second or employees It has no liability for its officers and directors. shelter from member dues and funding primarily comes shareholders its Gary MSSA is led its founder organizations. from other donations of the Association. Marbut, politics is active in Montana on behalf who committee under Montana operated political have He and MSSA grading its and endorsements of years publicize for ten law over and national elections. Marbut believes political candidates state Montana, and a political presence that the MSSA ‘has a weight public by the Montana virtue that carries some reputation wants long history of activism Montana.”Nonetheless Marbut of our oppose candidates and support to use MSSA member dues §13-35-227(1), MCA, prohibits doing MSSA from so. believes Partnership entity incorporated Tradition is an Western to do in Montana. WTP registered Colorado in 2008 and business presented in this case. Evidence reveals no more than that about itself that its by the State in District Court and not refuted WTP is and entities persons is to act as a conduit of funds for purpose anonymously including spend money who want to elections. WTP seeks to make unlimited influence Montana anonymous funding from these expenditures in Montana elections fact, on the or at least the operation premised sources. WTP’s a determinative assumption, independent expenditures that its have elections in Montana. influence on the outcome of summary judgment, the District Upon plaintiffs’ motion 13-35-227(1), MCA, violates the First Court considered whether § it United States Constitution to the extent that Amendment to the WTP, making independent Champion MSSA or restricts on of candidates.1 The District Court corporate expenditures behalf F.E.C., applied Citizens United v. 130 S. Ct. 175 L. Ed. 2d 753 (2010) 13-35-227(1), determined MCA, and impacts § corporations’ political speech by the United States protected Constitution. The District Court then considered whether the State had a compelling speech, demonstrated interest for the restriction on narrowly and the restriction is tailored to whether achieve it questions negative, interest. While answered both the District Court did a analysis compelling not conduct detailed Instead, question. unequivocal: it concluded that “Citizens United is government may prohibit and indirect independent on expenditures political speech.” (Quoting Minn. Chamber Comm. (D. 2010)). Gaertner, v. 710 F. 2d Supp. 868 Minn. The District Court specifically 13-35-227, MCA, did not address whether violated the § Constitution, and further noted that the had decision “no effect on direct corporate contributions to candidates or to any existing or future disclosure that might laws be enacted.” Those aspects of Montana law are therefore not at issue this case. We take note that appears Western Tradition engaged be

multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements. In case, addition to currently engaged this it is in separate litigation in the same District involving the Montana campaign laws on spending Gallik, disclosures. Western Partnership Tradition v. Cause (Mont. Ct.).2 BDV 2010-1120 1stJud. Dist. In another action filed United States September, 2011, WTP, District Court in under its new name of American others, Tradition and Partnership, challenges the constitutionality of most of the limits and requirements disclosure §13-37-216, Lair, al., Gallik, contained in al., MCA. et v. et United States District Montana, Court for the District of Billings Division. Ironically, perhaps, argued WTP in the District Court and in its oral corporations independent Under Montana expenditures law are allowed to make (9th Argenbright, ballot issues. Montana Chamber Commerce v. 226 F.3d 1049 Cir. 2000). October, 2010, In a decision in the Montana Commissioner of Political Practices organization through found that funds, had created campaign WTP a sham which to channel arguments contrary deceptive. and that its to the were The Commissioner register further concluded that WTP’s failure to aas committee and to disclose disposition the Montana’s purpose true source and of the funds it raised ‘frustrates Campaign specter corruption [and] Finance and Practices Act raises the process....” of the electoral compliance that their with these appeal to this Court on

presentation remedy it seeks to invalidate should same disclosure laws that now influence of its any regarding potential corrupting concerns unlimited corporate expenditures. the Citizens erroneously applied The District Court construed constitutionality of Federal

United case. That case considered the regulations prohibited statutes clearly “electioneering” (making a communication that refers to office) days primary identified candidate for Federal within 30 of a days a general election or 60 election. facts, United a case decided its upon was involved

“unique complex” rules that affected 71 distinct entities and included rules for 33 different in Federal separate types elections. Since the Federal Election Commission adopted 1,278 materials, 1,771 pages regulations, pages explanatory advisory opinions to and enforce the Federal implement law. The FEC adopted a 11-factor test in to the in a two-part, response holding single parties litigation Court decision. If want to avoid and possible penalties they must either refrain from an political speech or seek advisory opinion. this, found, All of allows the FEC political speech public to “select what is safe for consumption United, applying ambiguous tests.” Citizens 130 S. Ct. at 895-96. The ban, Court determined that “an outright law was backed United, criminal sanctions.” Citizens 130 S. Ct. at 897. A premise of Citizens United that First

¶12 was Amendment United, protections corporations. extend to 130 S. Ct. at Citizens additionally The Court option corporation determined that the for a to spend through separate a PAC was not a sufficient alternative because burdensome, extensive, and expensive regulations Federal The applied. Federal law allowed to form a separate (sometimes PAC) segregated fund called a action committee or long as or, the funds were limited to donations from stockholders unions, the case of regulations its members. The Court found the governing organization of PACs to be “onerous” restrictions that might corporation not allow a to a PAC in establish time to make its United, views known in a current campaign. Citizens 130 S. Ct. at 898. Therefore, regulations severely because the Federal laws and speech, constitutionality restricted their could be maintained upon showing they compelling governmental further a interest narrowly United, and are tailored to achieve that interest. Citizens S. Ct. at 898. claim The Court found that the Government did not actually had expenditures corrupted political process

concluded that “independent expenditures, including those made by corporations, give do not rise to corruption appearance or the United, corruption.” However, 130 S. Ct. at 909. if elected officials do succumb to improper independent influences expenditures, surely “then there United, is cause for concern.” Citizens 130 S. Ct. at 911. The government Court determined that the provided had not

compelling justify restrictions at issue. The Court considered and rejected arguments that preventing the distorting effect large expenditures; preventing corruption or the appearance ofcorruption; protection of dissenting shareholders were sufficient interests support Therefore, Federal restrictions. finding no compelling interest for the Federal restrictions on corporate political speech through independent expenditures, the Court found an impermissible contravention ofthe United, First Amendment. Citizens 130 S. Ct. at 911. While Citizens United was decided under its facts or lack facts,3 applied

it the long-standing rule that restrictions upon speech are not per unlawful, se but rather may be if upheld government demonstrates a sufficiently strong interest. Citizens 130 S. Ct. 898; at Federal Election Comm. v. Inc., Mass. Citizens Life, 479 U.S. 238, 251-52, (1986); 107 S. Ct. Bluman v. Federal Election (D. Commission, 2011) 2011 U.S. Dist. LEXIS 86971 D.C. (upholding against citizens). Federal campaign ban by foreign contributions Supreme Court in applied Citizens United the highest level of scrutiny there, to the restrictions issue requiring government interest, demonstrate a compelling although the level of evidence needed satisfy heightened scrutiny vary will “novelty with the plausibility justification of the raised.” Nixon v. Shrink Missouri PAC, (2000). 377, 391, Government 528 U.S. 120 S. Ct. 906 Therefore, the factual record before a court is critical to determining validity governmental of a provision restricting speech. The Dissents assert that Citizens United holds unequivocally that no government sufficient justifies political speech. limits on We disagree. The Court held that political laws that burden speech subject are to strict scrutiny, which requires government noted, example, The Court independent for the “scant evidence” of the effects of expenditures. United, Citizens 130 S. Ct. at 910. narrowly interest and is compelling a state that the law furthers

prove v. Court, Right citing The Wisconsin that interest. tailored to Life (2007), clearly 449, 464, S. Ct. 2663-64 FEC, U.S. speech, placing burden analysis of restrictions on an endorsed compelling a interest. to establish upon government met that burden. United, government at 898. Here the 130 S. Ct. summary District Court for moved the In this case both sides and discovery no in the case parties The conducted judgment. WTP Mr. affidavits, the MSSF and one from one from two brief presented presented The summary judgment. State support Champion transcripts of both consisting deposition extensive record more MSSF, along with seven Mr. Marbut of the Champion Mr. any of did not contest plaintiffs and attached exhibits. affidavits Nonetheless, give adequate Court failed to the District this evidence. determining the State had to the record in whether consideration imposed interest for the restrictions compelling § demonstrated a because, this 13-35-227(1), unlike Citizens MCA.We do so now law, Montana elections and it arises case concerns Montana history. (on MSSF) First, of Marbut behalf depositions very politically demonstrate that both have been active Champion could range of issues that concern them. Neither Montana on hindered or any way material in which Montana law demonstrate Marbut, activity Mr. on behalf of speech. censored their in the MSSF, politics an active fixture in Montana has been process many years. He stated that he believed legislative spend MSSF to obtain and donations from while Montana law allowed activities, to use organizations it did not allow MSSF other such distinction purposes. dues its members for the same No paid law, the Commissioner of appears in Montana affidavit of that it Political Practices affirms his construction of Montana law MSSF, therefore, such restriction on MSSF. failed to places no by the statute. impaired demonstrate that its was Similarly, Champion many political Mr. described his activities regularly speaks, a local and state level. He affirmed that he both on others, His blogs, public and meets with and has run for office. him from prohibits was that he believed that Montana law complaint company, Champion and readers that his telling his audiences that a Painting, supports Champion also his views. Mr. believes by 'Champion Painting, Inc.” would be more candidate endorsement endorsement, if than his and that his business persuasive personal spends money on enjoy benefits.’’However, events he will ‘tax in Champion’s case he is the sole shareholder and derives his livelihood money pays from the he himself from corporation. While expenditure statute forbids the Champion Painting’s to support oppose candidates, funds upon the burden Kenneth Champion, shareholder, as a sole to establish a political committee to advocate for his corporation’s interests and expend funds that he will contribute, decide to are particularly conclude, minimal. We under facts, these Champion’s political speech similarly materially was not impacted by the statute. WTP, noted, as has been explanations terse its of its

organization, funding, activities, and intent. It foreign claims to be a corporation but it is not corporation. a business purpose, according Its to un-rebutted evidence State, submitted to the District Court is to anonymously solicit and spend the funds of other corporations, individuals and entities to influence the outcome ofMontana elections. In promotional presentation donors, directed potential WTP represented:

There’s no limit you give. know, to how much can youAs very Montana has candidates, strict limits on contributions to but there is no limit to you give how much can program. to this You give can you’re whatever comfortable with and make as big an impact you wish.

Finally, we’re required to report the name or the amount any So, contribution that we you receive. if decide to support program, this no politician, bureaucrat, no and no radical you environmentalist will ever helped know make program this possible. only thing plan we on reporting is our success to contributors you like who can see the a program like benefits of just this. You can sit back on night election and see what a you’ve made. difference

Western Tradition Partnership, 2010 Program Election Year Executive added.) Briefing. (Emphasis Organizations like WTP that act anonymous as conduits for

spending by represent others a threat to the “political marketplace.” Life, Inc., Mass. Citizens 264, 107 479 U.S. at S. Ct. at 631. Echoing theme, the State presented evidence that operated WTP has disregard for and without complying law, with Montana unlike MSSF and Champion. Because WTP has not operation, disclosed its it is difficult to might determine how it impacted by 13-35-227(1), be § MCA, given but presented the evidence below we will assume there is impact.

a direct present case between the Second, a material factual distinction regulatory imposed burden is the extent of and Citizens United above, in Citizens United noted the Court challenged law. As of the Federal ambiguity length, complexity emphasized determine what restrictions, ofthe FEC to including power difficulty establishing and public consumption,” is “safe for contrast, In under corporate spending. to direct PAC as an alternative and maintained committee can be formed political Montana law a (See reports. e.g. forms or straight-forward §§13-37- and filing simple MCA.) 13-35-402, deposition in his described -210; Mr. Marbut 201 and and used them its committees political that MSSF has established own process period in over a actively political the Montana participate by the State in the District years. The evidence submitted through political their corporations, similarly demonstrates law, are and have been organized under Montana committees in participants politics. and active Montana presence substantial participate in each many lobbyists political committees who Legislature bear witness. Under session of the here, easily implemented committee is an facts undisputed in corporate spending engaging alternative to direct for and effective in any corporation This alternative is available to political speech. they Montana, Champion, as well as WTP should and to MSSF In of MSSF the comply existing choose to with Montana law. the case effectively the political shows that it has in fact used evidence years showing and there is no that it could not committee form for to do so. continue Third, in this case cannot be understood the Montana law issue

¶22 enacted, during the place the context of the time and it was outside 1889.) (Montana early century. became a state in Those twentieth by rough for years tumultuous were marked contests Butte, center of primarily mining economic domination between by foreign controlled trusts or mining enterprises and industrial long-term had on the corporations. disputes profound impacts These State, regarding judiciary, the location of including entire issues Senators, and the procedure for election of U.S. capitol, the state virtually control of all media outlets in the State. ownership and fight In the over corruption of well-financed abound. Examples Augustus Heinze and the rights entrepreneur mineral between F. Oil, managed then controlled Standard Heinze Company, Anaconda Butte, routinely who decided cases judges to control the two State Toole, Montana, Land, his favor. K. Ross An Uncommon 196-99 (Univ. 1959) bribed, of Okla. Press judges being Butte denied but one of them admitted that him representatives Anaconda had offered $250,000 sign Toole, cash to an affidavit that Heinze had bribed him. Montana, Land, An Uncommon 204. In response legal Heinze, to the conflicts in 1903

Anaconda/Standard closed all mining down its industrial (but operations many controlled), not the it newspapers throwing 4/5 Montana, of the labor force Toole, of Montana out of work. An Land, Uncommon price sending Its its employees back to work was that the Governor call a special Legislature session ofthe to enact a measure that would allow Anaconda to having litigate avoid judges. front of the Butte Legislature The Governor and capitulated and the statute e.g. State, 2011 MT 169, survives. See Patrick v. 17- ¶¶ 361 Mont. 257 P.3d 365. Clark, W. A. who had amassed a fortune from the industrial operations Butte, sights set his on the United States In Senate. 1899, in the wake of a large suddenly members, number of affluent Montana Legislature elected Clark to the U. S. Senate. Clark admitted $272,000 to spending in the effort and the estimated expense was over $400,000. Complaints of bribery Clark’s Legislature the Montana led investigation to an by the U. S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him. The Senate “expressed committee horror at the amount of money which had poured been politics into Montana elections ... and expressed its concern with respect to the general aura of corruption in Toole, Montana, Montana.” An Land, Uncommon 186-94. In a

¶26 demonstration of extraordinary boldness, Clark returned to Montana, caused the Governor to and, leave the state on a ruse with assistance ofthe supportive Governor, Lt. won appointment very to the U. S. Senate just seat that had Toole, Montana, been denied him. An Land, Uncommon 192-93. When the Senate threatened investigate time, unseat Clark a second resigned. he Clark eventually won his Senate seat after spending enough political campaigns to seat a Legislature Montana favorable to candidacy. his After the Company Anaconda cleared itself of opposition from others, Heinze and it controlled press 90% of the in the state and a majority legislature. of the Glasscock, C. B. Copper War (Grosset 1935). Kings, & Dunlap, N.Y. By company, 1915the after having acquired all of holdings others, Clark’s as well many “clearly local folks [and] order... economy political

dominated controlled corporation grip in the locked themselves now found Malone Michael their concerns.” Street and insensitive from Wall (Univ. Centuries, Montana, History Two Roeder, and Richard 1976). evident that that time it was Even at Press, Seattle of Wash. state converting the the state “thus controlled industrial furthering and for the instrument into a government favorable to execution of laws and the legislation accomplishment and inimical to large corporations ofthe stockholders the absentee who farming classes wage earning of the economic interests in Montana.” population of the larger percentage constitute far (Lewis Pub. Montana, 429-30 Sanders, History Vol. Helen Fisk 1913). Co. Senate that in the United States testified In 1900 Clark himself in Montana as a voting” so indifferent <'[m]anypeople have become in the expended money that have been ‘large sums of result of Land, naked Montana, 184-85. This Toole, An Uncommon state....” (Governor and very government corporate manipulation populist reforms ultimately resulted Legislature) of the State voted to amend people law. In 1906 the part are still of Montana thereafter, in long initiatives. Not for voter Constitution to allow state including used to enact reforms power initiative was 1906 this new candidates; the direct election elections to choose primary Act, of which Senators; part Practices Corrupt and the United States 13-35-227, MCA, in this case. at issue survives as § contending of Montana was still The State the Anaconda century. example, For even in the mid-20th domination Montana’s ownership ofall but one of controlling Company maintained K. Ross Toole Writing in historian until 1959. major newspapers the state: so noted and described in the state Company Anaconda

Today the influence of the long It has been a very great. unspectacular but legislature mailed fist. But no informed showed the company time since the the basic use to which influence or the fact that denies its person down, taxes quo-feokeep the status it is is to maintain put in Butte or in either company personnel New of the rock the boat. matter, Heinze, for that or even Augustus F. New York remember Dixon, it would be foolish Joseph M. but [U. Senator] S. the Anaconda influence of deny pervasive that the anyone to parcel of the Montana part politics in Montana Company heritage. Montana,

Toole, Land, study A of An Uncommon 244. Montana in the of early corporate 1970s concluded that influence the Anaconda by structure, had Company “replaced corporate been a power directorates, same interlocked law firms and common business among Company, the Anaconda Montana Power Company, interests” Railway System. Burlington Northern the First Bank Malone and Montana, Roeder, Centuries, History History professor a Two 290. of Fritz, Harry Court, presented Dr. his affidavit District corporate that the remain in “dangers affirmed of influence Montana” depends upon economy because resources which its in turn depend upon markets. He a century ago distant affirmed: “Whatwas true today: distant corporate corporate true interests mean that dominated will campaigns work ‘in essential interest of outsiders with very secondary local interests a specific consideration.’” While corporate go Montana, they interests come and are always present. wealth, historically Montana’s mineral for example, exported has been State, and that true today. is still Commonwealth Co. Edison Montana, 191, 196, (1980), v. State 189 Mont. 615 P.2d aff'd, 453 U.S. corporate power S. Ct. that can be exerted with unlimited a vital political spending is still interest to the of Montana. people Furthermore, presented the evidence below the State aptly expenditures money

demonstrated how even small can impact Montana elections. The State submitted affidavits from two respected politicians a experienced public Brown, servants. Bob Republican, served in Representative, the Montana House of in the Senate, as the Montana an Secretary State and as candidate unsuccessful for Governor. He retired 2010 as a Senior Rocky Fellow at the Center for the Mountain West and the Mansfield Center, at the University Cooney, Democrat, of Montana. Mike in the Montana of Representatives, served House in the Montana Senate, Secretary State, as the Montana and also as an unsuccessful Montana, for candidate Governor. Both affirmed that with its small population, enjoys political campaigns marked person-to-person advertising They contact and low cost of to other compared states. that allowing independent expenditures affirmed unlimited money drastically into the Montana would process change campaigning by shifting emphasis raising funds. Cooney, for example, ran his first state legislative campaign “grassroots” as a he $750 effort that believed could have been derailed expenditure an of even a opposing couple thousand dollars. susceptible are more politics that Montana affirmed Brown large of that infusions campaigns, than Federal corruption coverage just media expenditure on independent corporate of amounts politics of Montana type corruption of the same accomplish “could 13-35-227, Cooney MCA. of’ § to the enactment led that which he campaign when his most recent from experience his recounted really count”in the they “didn’t were concerned found that voters financial make a material they can unless political process sway. This is therefore hold interests contribution, special and that United by A. Clark to the described W. sentiment much the same century ago, quoted above. over a committee States Senate Bender the affidavit Edwin presented also The State ¶32 under He confirmed that in State Politics. Money on National Institute (in make unlimited contributions can now corporations law amount) PACs to corporate from their expenditures independent committees, candidates, directly to ballot measure support oppose or unlimited measures, and can make support oppose and to ballot make with can contributions lobbyists. Corporations expenditures candidates and to from their PACs to limits as all donors the same races also affirmed the low cost committees. Bender party states,4 legislative other with all Montana, comparison in in million in a total of around raising $7 for office statewide candidates the Montana House raised average candidate for year 2008. In that the Montana Senate raised $7,475 average candidate for and the spending for direct $13,299. possible makes it This elections. affect the outcome of significantly spending in the affirmed that studies election Bender also campaign contributions percentage United show that the States sharply from 48% states drops individual voters in states without. Evidence spending to 23% corporate restrictions on years in recent District Court showed presented has far on ballot issues Montana, independent spending 2010 provided He an extensive from other sources. spending exceeded Law, University School of the Brandéis study by the Hofstra joint Money and the Institute on School of Law National Center the NYU 4 that 3 of polling that concluded that shows in State Politics decisions judicial Americans affect campaign contributions believe Politics Judicial judges are elected. New in states where miles, size, 145,000 covering square largest state over Montana is the fourth people. population million less than one and has a 2000-2009, ed., Elections Charles Hall Campaign, Justice at Stake 2010. impact speech Laws that way by using some must be evaluated proper scrutiny. level of type This is determined of speech that the law affects and the type imposes. burden that the law Davis Comm., 724, 737, v. Fed. Election 2759, U.S. 128 S. Ct. (2008). place Laws that severe on fully protected speech burdens are subject scrutiny, to strict Bennett,_ Arizona Free v. Enterprise Club U.S._, (2011), 131 S. Ct. 2816-17 place only while laws that minimal burden or that apply fully that is not protected scrutiny. Davis, receive intermediate 554 U.S. at 128 S. Ct. at long Montana law has incorporated requirement of a compelling state interest in evaluating involving cases claims that governmental action infringes upon constitutional rights. Constitution, The Montana 10, Art. 2 expressly incorporates the evaluating § standard for issues affecting right the privacy. of individual Rights Montana Hum. Div. v. City Billings, 434, 439-40, 649 1283, 1286 (1982); 199 Mont. P.2d St. of James Comm. Hosp. Court, 261, 4, v. District MT 317 Mont. ¶ 419, 77 P.3d 534. Under Montana government law the must compelling demonstrate a interest when it intrudes a fundamental right, and determination of a compelling interest is a question of law. (1994). Pastos, 43, 47, State v. 199, 269 Mont. 887 P.2d upon Based the background §13-35-227(1),MCA, the State of Montana, accurately voters, or more its clearly compelling had a challenged to enact the statute in At that time the State government Montana and its operating were under a mere shell of legal authority, and the real social and political power was by wielded powerful corporate managers to further their own business interests. The voters had more than enough of the corrupt practices and heavy- handed influence asserted special controlling interests political Montana’s Bribery institutions. public officials and unlimited campaign spending by the mining interests were commonplace and well public. known to the Referring Clark, to W. A. but describing general Montana, state of in affairs Mark Twain wrote in 1907 that Clark ‘is said bought to have legislatures and judges buy as other men food and By example raiment. his he has so excused and so sweetened corruption that in longer Montana it no has an Twain, offensive smell.”Mark Mark Twain in Eruption, (Harper 1940). & Bros. then, The question is when in years the last 99 did Montana lose statute, did. If if it ever support or interest sufficient power and social degree a preserve statute has worked away protections its because to throw required

autonomy is the State a interests? Does their promote seek to shadowy of WTP backers if the prohibition its murder or invalidate repeal have to state influence, corporate think not. Issues rate declines? We homicide extractive upon agriculture dependence sparse population, corridor, and low transportation location as development, resource to continued vulnerable especially make Montana costs campaign and the democracy to the detriment of control corporate efforts of unique has Clearly Montana government. form of republican of this statute. through preservation protect interests to compelling integrity preserving has a clear interest While full encouraging has an interest process, it also its electoral The unrefuted evidence electorate. of the Montana participation through the affidavit of in the District Court by the State submitted are contributions that individual voter Bender demonstrates Edwin candidates in states where the total raised diminished from 48% of raised of the total place has been 23% corporate spending ban corporate spending. unlimited permit by candidates states Montana, generally citizens a state where is illustrative of point In the case of donations. campaign candidates with modest support donations, the issues, may make unlimited where ballot give who markedly are different from those characteristics of donors gave donors 95% example, In 97 institutional to candidates. while 760 campaigns, initiative money of the total raised ballot Similarly, in remaining for the 5%. donors accounted individual money to ballot gave of the total donated 34 institutional donors 95% irrevocably Moreover, money would unlimited campaigns. races, office which have of local Montana change dynamic low-dollar, by the broad-based historically characterized been the individual present, candidates. At campaigns run Montana House, and District Court races Montana Senate contribution limit for 13-37-216, it is Section $160, $310. and for Court elections is (4). unlimited in the infusion of MCA, adjusted provided as With candidate, targeted opposition of or to a money support corporate against the compete be unable to average the citizen candidate would citizens, candidate, who for over 100 and Montana corporate-sponsored meaningfully made their modest election contributions years have effectively process. shut out of the count would be and protecting interest compelling also has a ¶39 State, the elect judges. people In this system its of elected preserving Supreme Court, the Justices of the Judges Courts, of the District Const, and most judges VII, §8; lower court as well. Mont. art. §3-2- 101, MCA; 3-5-201, and MCA. Judicial nonpartisan. elections are § 13-14-111, Section MCA. When an incumbent running for a seat, judicial can approve reject voters the candidate. Mont. Const, (e). VII, art. §8 The people of the State of continuing Montana have a and in, compelling and right to, interest a constitutional independent, an impartial fair and judiciary. The State has a concomitant preserving appearance judicial propriety independence and so as to maintain the public’s trust and confidence. In present case, the free rights of the corporations are no more important than the due process rights of litigants in Montana courts to a fair and independent judiciary, constitutionally and both are protected. The Bill Rights assign does not priorities as among rights guarantees. it Stuart, Neb. Press Assoc. v. 539, 561, U.S. 96 S. Ct.

(1976). Clearly the impact unlimited donations creates a

dominating impact political on the process and inevitably minimizes impact individual citizens. As to office, candidates for political §13-35-227(1), MCA, designed to further compelling interest of the people of Montana strong voter participation process. in the While have first amendment rights speech, they do not have the vote. The importance of and compelling interest in an independent

judiciary is reflected as a policy matter of in Montana’s Code of Judicial Conduct.

An independent, fair and impartial judiciary is indispensable system our justice. The United legal system States is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, interpret will apply governs law that society. our Mont. Conduct, Code of Judicial Preamble. Montana expects judges its to act promote “public confidence in independence, integrity, and impartiality of the judiciary” and to “avoid impropriety and the appearance of impropriety.” Mont. Code of Conduct, Judicial Rule 1.2. it duty Because is the judge of a to make decisions based upon the facts case, of every judge law greatest must “to the extent possible, be free appear to be free from political influence pressure.” Conduct, Mont. Code of Judicial Comment [1]. 4.2, Rule ‘Public confidence in the independence and impartiality

238 are to be judicial perceived if candidates judges is eroded judiciary Conduct, Rule Mont. Code of Judicial influence.” subject 4.2, [3]. Comment of importance Court has affirmed the The United States judiciary. maintaining public respect for the integrity and in

judicial in the course principles of law ‘Courts, system, in our elaborate court to and the of a power prerogative resolving disputes. of rest, end, respect in the accorded upon function perform this judgments depends respect The citizen’s judgments. to its integrity Judicial issuing probity. court’s absolute upon turn is, highest [Emphasis order.” a state interest consequence, of added.] Co., 868,_, Inc., 129 S. Ct. Massey Coal 556 U.S.

Caperton v. A. T. (2009) White, Party Minn. v. 536 2252, 2266-67 Republican (quoting of (2002)). 765, recognizes The Court also U.S. 122 S. Ct. 2528 conduct, to maintain judicial which “serve importance of state codes Caperton, the rule of law.” 556 U.S. integrity judiciary of the and interest” in at_, “compelling at 2266. States have a 129 S. Ct. undermine actual judges from activities “would preventing F.3d Shepard, Bauer v. impartiality, appearance.” as well as its 2010) (7th judges acting posts limits on (upholding Cir. ‘The state delivering political speeches). leadership public’s in the trust and certainly compelling has a state judicial system.” of our Simes v. Ark. integrity confidence in the (Ark. Comm., Disability Judicial 247 S.W.3d Discipline 2007). judicial particularly elections would be vulnerable of fairness and in

large independent spending, both terms levels impartiality. Litigants appearing public perception terms of the large funds judge expenditure before a elected after a rights their due were legitimately question process could whether election for Chief Justice of adversely impacted. In the 2008 contested Court, presented by evidence the State the Montana for media expenditure District Court indicated that total $60,000. entity Massey It clear that an like advertising was about dollars, Coal, willing hundreds of thousands of much less spend even millions, judicial effectively election could drown out all on a Montana other voices. The historic Heinze-Anaconda conflict noted above “bought” of a negative corrupting illustrates the effects obvious judiciary. to The Day recently Sandra O’Connor wrote in her introduction

New Politics Judicial Elections that the “crisis of confidence in the impartiality judiciary is real growing.” The Executive Summary in that report same noted a study of the nation’s ten most costly judicial elections shows the extraordinary spending power of “super spender groups,” mostly which are corporate funded. Montana is not immune from such influence and has a compelling interest in precluding corporate expenditures judicial on elections based upon its interest in insuring judicial impartiality and integrity, its interest in preserving public judiciary confidence in the and its interest protecting the process rights due litigants.5 above, As discussed ¶46 the statute no has or minimal impact on MSSF and Champion. Because ofthis minimal impact, the State is not required to demonstrate a compelling interest support 13-35- § 227(1), MCA. It is required only to demonstrate the exacting less sufficiently important interest. For the same reasons discussed above regard with to the compelling interest, state the statute clearly is supported by important governmental Therefore, interests. as to MSSF it Champion, passes constitutional muster as well. Finally, 13-35-227(1), MCA, narrowly § tailored to meet its objectives. only The statute minimally affects entitles like MSSF and Champion. applies WTP, Even if it directly to WTP can still speak through political its own organizations committee/PAC as hundreds of in Montana do on an ongoing basis. Unlike the Federal law PACs United, considered in Citizens under political Montana law committees are easy to easy establish and to use to independent make expenditures political for speech. As the Bender affidavit submitted the State in District Court confirms, corporate PACs can make unlimited independent expenditures on behalf of candidates. The difference then is that under Montana law PAC has to comply with Montana’s disclosure and reporting laws. And earlier, as noted corporations are allowed to contribute to Montana, ballot issues in significant which is a distinction because ballot issues often have a direct impact corporate business activities within Montana but present danger less of corruptive influences that have concerned Montana voters since 1912. The statute addresses contributions regarding candidates for political state office. additionally argued The State has compelling that it protecting has a interest in rights dissenting disagree shareholders who stance of spending. do presented We not reach that issue because it has not been in the factual framework of this case.

CONCLUSION that Montana’s a conclusion Citizens United compel does not corporation expenditures independent prohibiting law Rather, applying unconstitutional. to a candidate related has in Citizens it is clear that Montana enunciated principles rationally-tailored challenged impose compelling and enter the District Court We reverse statutory restrictions. and the Attorney General in favor of the summary judgment WTP, against MSSF Practices of Political Commissioner attorney fees on the issue of cross-appeal Champion. Consequently, is moot. COTTER, MORRIS, WHEAT and RICE concur.

JUSTICES BAKER, dissenting. JUSTICE by Citizens that we are constrained agree I with Justice Nelson MCA, the extent §13-35-227(1), unconstitutional

United to declare In political speech. corporate expenditures prohibits independent it than view, compelling made no more a case my the State of Montana 90-page dissenting opinion in the presented that painstakingly in rejected by majority emphatically Justice Stevens and Citizens United us to affirm the United. Though requires I believe Court, any anticipate consequences event District we must inventing today reversed. Rather than holding should the Court’s be to rescue Montana’s attempt in I fear be a vain distinctions what will in a manner Act, I construe the statute Corrupt Practices would the constitutionality of its and to further preserve what remains legislature’s underlying prevent corruption. intent unequivocally Tn]o United holds sufficient Citizens ¶50 of justifies political speech interest limits on the governmental S. Ct. at 913. Just as for-profit corporations.” or 130 nonprofit however, government impose it allows the disclaimer unequivocally, because, on while such requirements political and disclosure ability speak, they ‘impose ... no “may burden the requirements activities,’ anyone prevent ... and ‘do not ceiling campaign-related ” (citations omitted). Plaintiffs’ 130 S. Ct. at 914 speaking[.]’ from argument disclosure acknowledged during counsel oral the compelling are the means which to address State’s requirements And the integrity process. the of the election preserving interest Competitive Brief the Center for Politics described Amicus Curiae tools” available to among mandates as the “constitutional disclosure United’s clear United. In Citizens states in the wake light our prohibit corporate expenditures, cannot directive that the State 241 challenged and construction of the statute should focus on review preserving requirements applied expenditures disclosure to such corruption. protect overriding preventing order to the attempts This Court to construe statutes in a manner that avoids 293, 14, USDA, MT interpretation. unconstitutional Oberson v. ¶ 519, 171 If a constitutional and 339 Mont. P.3d 715. law contains both legislation the Court examine the provisions, unconstitutional first will Mont., State, if severability to determine there is a clause. PPL LLC v. 64, 131, 402, 229 State, (citing Finke 2010 MT 355 Mont. v. P.3d ¶ 576). 48, 25, 314, 2003 MT In 314 Mont. 65 P.3d the absence of such ¶ clause, integrity [the law] Court considers "whether the relies upon the unconstitutional or provision [the] whether inclusion provisions Finke, acted as inducement to If its enactment.” 26. ¶ stricken, unconstitutional are provisions complete the law must be itself and still capable legislative of execution in accord with intent. Finke, Though "the presumption against the mutilation of a ¶ statute,” Sheehy Div., Emp. 129, 142, 864 v.Pub. Retirement 262 Mont. (1993), P.2d if offending provisions may be removed without frustrating purpose disrupting integrity law, or of the only provisions Court will strike those of the statute that are Greely, 378, 380-81, unconstitutional. Mont. Auto. Ass’n v. 193 Mont. (1981). 632 P.2d (1) ruling Plaintiffs seek a invalidating §13-35-227, subsection

MCA. That prohibits corporation subsection from making “a contribution or an expenditure connection with a candidate aor political supports committee that or opposes a candidate or a (2) party.” statute, Subsection here, not challenged prohibits a person, candidate, accepting committee from or receiving (3) a corporate contribution. Subsection ofthe same statute allows ‘the establishment or administration of a separate, segregated fund to be making political used for expenditures contributions or if the fund voluntary consists contributions solicited from an individual shareholder, who is a employee, or member of corporation.” 13-35-227(3),MCA, Section when read in the context ofMontana’s campaign scheme, overall finance expresses legislature’s intent to provide citizens and shareholders with information about sources of support funds used in of candidates and ballot issues. Under Citizens clearly may the State require corporate independent expenditures to come consisting only "voluntary from fund §13-35-227(3), contributions” language MCA, as the provides. now (1) Subsection of the preserved by allowing statute still could be made from a expenditures under that subsection be corporate (3), prescribed by fund” as subsection without “separate segregated funds requirement the now-invalid “the applying consisto voluntary contributions.” constitutionally I therefore hold that the Commissioner would independent laws to

may reporting extend Montana’s disclosure made on behalf of candidates or expenditures by corporate entities committees, just as the Commissioner has done for holding, such a expenditures campaigns. on ballot issue Without Legislature general that the Montana will not meet in session given election, in if may to the next Montana voters be left the dark prior § MCA, 13-35-227(1), highest court. is invalidated nation’s 13-35-227(3), MCA, Applying constitutionally-permitted in a § expenditures corporate treasury fashion to from a will further government’s requirements disrupt disclosure and will not integrity. Majority, only the statute’s As part noted §13-35-227, original Corrupt Opinion, Practices Act survives in MCA. The amended 100-year 28. statute has been numerous times its ¶ (3) 404, history. Subsection was added in 1979. 1979 Mont. Laws ch. 2003, statute’s most recent modification was after federal prohibition against corporate courts invalidated the law’s contributions expenditures campaigns. in ballot issue Mont. Chamber Com. (D. 593, Argenbright, Supp. 1998), v. 28 F. 2d 600-01 Mont. aff'd, (9th 2000). 1049, 1052 Although F.3d Cir. neither original Act nor severability clause, most of its amendments have included a applying suggest the statute in the fashion I is consistent with the Finke analysis. Through years, legislative scant, history while

legislature’s palpable prevent intent was to in Montana corruption Opinion, elections. 22-28. Prohibition of corporate contributions has ¶¶ one goal; been means to achieve that disclosure has been another. amendment Romney, sponsor State Senator Miles of the 1975 that first corporate spending introduced the ban on issue campaigns, ballot part “everyone commented in should giving know who is how much” and statements of contributions facilitate would (Mar. knowledge. Comm., Mont. H. Jud. Hearing on SB at 5 1975). iterations, Through legislation its various inducement for the legislature’s has been the prevent corruption desire to elections. authority outright Absent constitutional for an on corporate ban spending, prohibiting application “voluntary contributions” (1) further, expenditures clause to made under subsection will frustrate, accountability prevention corruption. the that fosters of preserve requirement the a Construing separate statute to its for ¶57 from segregated corporate expenditures fund which are made will facilitate under requirements promulgated by disclosure the Montana Unsworth, Commissioner ofPolitical Practices. The Affidavit ofDennis Court, the State submitted before District described the process place present for corporate spending disclosure time ballot independent on issue measures. Unsworth stated a expenditures corporate treasury support from to or a oppose ballot reported measure must be on the of Commissioner Political Practices’ committees,” C-4. Form The C-4 form is for ‘incidental political which political are defined in the Commissioner’s “a rules as committee that is not specifically organized or maintained for the primary purpose of influencing may incidentally elections but a political become by making expenditure committee a support contribution or to or 44.10.327(2)(c). oppose candidate and/or issue.” Admin. R. M. The only other of types political are “principal campaign committees committees,” committees” and ‘independent both which are committees specifically organized to or support oppose various candidates or An independent issues. committee includes Political 44.10.327(2)(b)(i). Action Committee. R. Thus, Admin. M. corporate Commissioner’s rules treat treasury expenditures as expenditures by ‘incidental committees” because the entities do not exist or specific purpose supporting candidates, opposing issues, ballot or both. integrity The and purpose of the law can salvaged by be

permitting the committee” apply Commissioner ‘incidental status separate to a treasury fund a corporation’s from which election- related expenditures are made. This corporate would ensure that contributions are on the footing, given same and are public the same daylight, individuals, as contributions political committees, action §13-37-225, parties. generally, MCA; See Admin. R. M. 44.10.321 -44.10.333. preventing value disclosure in corruption cannot be ‘tB]y revealing

understated. information about to and contributors participants debate, in public discourse and help disclosure laws they ensure voters have the facts need evaluate various messages Wash., competing for their attention.” Human Inc. v. Life of (9th 2010). Brumsickle, F.3d 1005 Cir. ‘IP]rompt disclosure expenditures provide can shareholders citizens with information needed to hold and elected officials United, supporters.” positions for their

accountable recognized importance Circuit has S. Ct. at 916. The Ninth the context of ballot issue in disclosure in Montana’s East Helena v. Ferry Rd. Church Canyon Baptist campaigns. (2009) noting (citing cases Unsworth, 556 F.3d masquerading in “mayprevent ‘the wolf from requirements disclosure ”). of Montana’s ban clothing.’ Regardless of the ultimate fate sheep’s requirements political expenditures, state disclosure corporate ‘in expenditures all entities applied be should supports or a committee that with a candidate connection 13-35-227(1), Section MCA. political party.” a candidate or a opposes unflagging it conclusion, obligation, keeping I is our In believe law, safeguard the rule of to honor the duty the courts’ highest today “Americans accept of our nation’s Court. decisions They the guardian role as law. Supreme] [United States Court’s decisions,... following even the value to the nation of Court understand they may and they disagree with a Court decision even when be when may Stephen Breyer, Our wrong.” Making and the decisions be right (Alfred 2010). A. Democracy Judge’s Knopf Work:A View214 Citizens outright corporate political a ban United makes clear that state’s on 13-35-227(1), First violates the Amendment. Since expenditures § ban, MCA, just I from the Court’s imposes respectfully such dissent I entirety. instead uphold uphold decision to the statute in its would necessary independent corporate to ensure provisions those full reported are and disclosure is made to expenditures properly corporation’s citizens the election-related inform and shareholders of spending. NELSON, dissenting.

JUSTICE from respectfully I dissent the Court’s decision. ¶61

I. INTRODUCTION clear in Supreme The Court1 could not have been more Commission,_U.S._, 130 S. Ct. 876 United v. Federal Election (2010): under the First Amendment to corporations rights have broad speech, in and engage the United States Constitution to using general treasury prohibited from funds corporations cannot be antidistortion, anticorruption, on purpose for this based language the Citizens United shareholder-protection interests. The Supreme Supreme ‘the 1 1 to the States Court as Court.” References refer United Court,”‘this Court,” “we,” Supreme include and “our.” to the Montana Court ‘the sweeping virtually majority opinion remarkably is and leaves no muzzling restricting corporate for or otherwise conceivable basis independent expenditures.2 in the form of result, question presented As a critical case now before the the compelling Has the State Montana simply us this: identified interest, already Court, rejected state that would justify outright corporate expenditures political speech ban on for 13-35-227(1), Having matter, I effected MCA? considered § Attorney very believe the Montana General has identified some compelling limiting corporate expenditures reasons Montana’s however, political process. problem, regardless The is that of how are, I persuasive may Attorney justifications think the General’s already every Court each one has rebuffed of them. Accordingly, State, as I as much would like to rule in I favor good cannot in do so. faith Court, hand, The differently. other views the matter The may

Court concludes that Montana bar using general treasury funds for political speech-Citizens United notwithstanding-because has unique compelling ‘Montana protect.” Opinion, interests to What “unique” 37. interests render ¶ exempt from Citizens United? One searches the Court’s any. find Opinion vain to The Court states that Montana has “a preserving integrity clear interest in process” its electoral “an interest in encouraging the full participation of Montana Yet, electorate.” Opinion, Montana is hardly unique ¶ this Every regard. state preserving Union interested in integrity of process its electoral and in encouraging the full participation of its electorate. asserts that Montana has interests in “protecting preserving system its of elected judges,” “preserving appearance judicial the of propriety independence and so as to maintain the public’s confidence,” trust and “protecting and the process rights litigants.” due of Opinion, 40, 45. But surely ¶¶ every state judiciary with an elected has these same interests. The Court also compelling cites ‘the interest of people the of Montana in strong participation voter process.” the 41. Opinion, Again, ¶ however, the of people certainly Montana only people are not the in the United States with compelling strong interest in participation. voter The fact by is that none of the interests identified the Court are unique to What the really Montana. Court is is that saying Montana notes, Opinion, As the Court direct are not at contributions issue here. 8.¶ make Montana which qualities history unique unique

has a corporate ofunlimited influence corrupting the susceptible uniquely history involving to Montana’s Indeed, points the Court expenditures. officials, manipulation their bribery public of Kings-their Copper the in the late judges control over local and their government, of state history, on this 22-28. Based early Opinion, 1900s. ¶¶ 1800s and compelling ‘had a voters that Montana concludes Court Furthermore, the 36. 1912.’’Opinion, challenged ¶ statute enact influence dangers corporate of concludes Court fact, In 29-31. Opinion, in Montana. ¶¶ still exist domination continued efforts “especially vulnerable that Montana is asserts democracy republican and the to the detriment control corporate Court, this is According to the 37. Opinion, government.” ¶ form of agriculture upon dependence sparse population, Montana’s owing to transportation as a development, location resource and extractive these 37. Given Opinion, costs. corridor, campaign ¶ and low money corporate that unlimited characteristics, opines the Court political office oflocal Montana ‘irrevocably change dynamic would low-dollar, by the historically been characterized races, have which 38. Opinion, candidates.” ¶ run Montana campaigns broad-based money support of or corporate Moreover, the infusion of unlimited impact “tninimize[ the ] targeted candidate would to a opposition average and leave political process in the citizens” individual 38, Opinion, process.” ¶¶ out of the “effectively shut citizen direct may prohibit flat-out holds that Accordingly, the Court spending by corporations. unique” this ‘Montana is agree I cannot Respectfully, seriously this And I doubt Citizens United. is consistent with rationale this case is in the Court when going prevail rationale is reading fair thing, For one certainly will be. as it almost appealed, reading fair ofthe with a majority opinion, coupled the Citizens United to the inescapably leads dissenting opinions, concurring separate Attorney arguments-and every General’s one conclusion argued, arguments-was those adopting rationales this Court’s Moreover, Court. considered, flatly rejected and then an experienced that Montana propositions accepting even political corruption domination period corporate egregious understandably citizens century, that Montana of the 20th the turn corrupt practices influence and heavy-handed up fed with became remains time, day to this and that Montana at the interests special control, what the efforts of vulnerable to continued especially Attorney recognize Court and the General have this failed is point: corporate constitutionally fundamental a ban on not a speech is permissible remedy problems. abundantly for these should be This clear from the following passage Citizens United:

If elected officials succumb to from improper influences independent they if their expenditures; judgment; surrender best if they put before then expediency principle, surely there give weight attempts by cause concern. We must [the legislative dispel appearance branch] to seek to either the or reality however, by law, these influences. The remedies enacted comply and, must Amendment; with the First it is our law and speech, less, our tradition that the governing more rule. An outright ban on corporate political during the critical preelection period permissible remedy. is not added). at 911 (emphases S. Ct. (2 §441b, The federal law struck down in Citizens United U.S.C. 2002) as amended Bipartisan of the Reform Act Campaign §203 prohibited corporations expressly advocating from or election defeat of broadcasting electioneering candidates and from days communications within of a primary days election and 60 aof general election. Citizens 130 S. Ct. at 897. The Montana law at issue categorical, here is even more prohibiting corporations using general treasury ever political advocacy. funds for Section (“A 13-35-227(1), MCA may an corporation not make contribution or expenditure in connection with a a political candidate or committee supports opposes party.’). a candidate or a If federal law is facially unconstitutional, held, as the any then I cannot possibility envision the Montana law will the predictable survive appeal this Court’s decision. Unquestionably, unique history. Montana has its own No doubt Montana also has compelling interests in preserving integrity ofits process encouraging electoral and in participation the full of its may And electorate. indeed be more vulnerable than other states domination of the process. But the notion argued by the Attorney and adopted by General the Court-fehat these characteristics entitle Montana to a ‘ho special peeing” zone in the First Amendment swimming pool4s simply untenable under Citizens United. Admittedly, I have had to frustrating never write a more dissent. agree,

I at least in principle, with much of the Court’s discussion and arguments Attorney with the More I point, General. to the decision Citizens Court’s disagree with thoroughly view, and, my better- rather, eloquent agree, I United. result, myself As a I find in the Stevens. dissent Justice reasoned controlling ofa to defend the position having applicability distasteful disagree.3 profoundly with which I precedent said, ultimately my agreement or this is not about That case Attorney General or our satisfaction or with the disagreement agree Whether we with the Citizens United decision. dissatisfaction First Amendment is interpretation Court’s Supreme with the government, of our system In our federal irrelevant. accordance with acknowledge Supreme Court’s here are to obligations is, Constitution for better or for United States interpretation state, on the of this and to worse, binding on this Court and officers ruling. Supreme the law faithful to the Court’s apply Granted, legislative executive branches there are in the and some call-and, fact, have called-for Montana government who would law, government, disregard nose at to federal to thumb its the federal 2). (U.S. Const., VI, art. boldly ignore the Clause cl. Supremacy and to Nullify Laws, State’s Fed Dennison, Mike Bills Test Power to e.g. See (Feb. 13,2011). views, Regardless ofthose Independent Helena Record however, executive, Montana-legislative, all elected officials in and judicial-are and “support, protect sworn defend constitution of Const, Ill, Obviously, art. this the United States.”Mont. means §3. Court’s of the United Supreme interpretations accordance with Thus, highest in the country Constitution. when the court has States law, it clearly on a federal constitutional did in matter of spoken United, the Court-is at highest court Montana-fehis decision a liberty disregard uphold in order state parse that, clearly politically Supreme while at odds with popular, law parcel every This rule of law and and part Court’s decision. is the justice’s “support, and defend the judge’s protect and oath of office my view, In of the United States.” this Court’s decision constitution fails to do so. today rejected the notion that emphatically Court has speech may be political restricted based interests campaign safeguarding the

protecting against political corruption, in the ability compete participate ofindividual citizens to light Partnership’s all the Tradition The task is more distasteful Western 7, 9,19; Appellants questionable Opinion, hypocrisy. See Br. of tactics and blatant ¶¶ 2011). 10-11, (Apr. 22-23 process, preserving judicial integrity and impartiality. It makes no sense may rely whatsoever that a state very on these same interests-despite their rejection by the Supreme grounds Court-as for muzzling corporate speech simply because the history, state’s economics, demographics, way elections are in some “unique.”It that, also makes no hand, sense on one the First Amendment protects corporate expenditures and, at the federal level apparently, throughout that, the rest of the country4 but on the other hand, this First Amendment protection magically evaporates at Montana’s borders because of a adopted years law ago to address very fact-specific Larry Howell, situation. See Once aUpon Time in the West:Citizens Caperton, and the War the Copper Kings, (under Situation”) at (available 6-16 heading ‘The Montana http://mtlr.org). Indeed, if Court countenances this Court’s approach of restricting corporate political speech rights based on population density, the existence of wealth,” "mineral history ‘low-dollar, broad-based campaigns,’’and past experience ‘heavy- handed influence” asserted corporations, then shortly there will be nothing left of Citizens United at the state level. Due to its unpopularity, the Supreme Court’s decision will be “state-lawed”into oblivion. While this good would be a thing in many, the view of my point here is Supreme that the Court clearly intend, did not with the broad, sweeping, and unqualified language used, it to allow the holding of Citizens United to be through circumvented “uniqueness” stratagems. Therefore, and with all due respect to my colleagues, I believe this

Court is simply wrong in its refusal to affirm the District Court. Like not, it or Citizens United is the law of the land as regards corporate political speech. There is no ‘Montana exception.” proof of the Court’s error is found in a comparison ofthe provided rationales in the Opinion Court’s with the by statements Supreme the Court rejecting those rationales. I begin with an analysis of the Citizens United decision. 4 Barnes, See Robert Citizens United Decision Reverberates in Courts across Country, 2011) (‘The Washington 22, (May Post [Supreme January Court’s] freeing corporations decision spend they unions to against whatever like for and wiped candidates wages out banning laws in 24 states spending. Only such Montana still lonely a ban.”); court battle to maintain the Legislatures, Natl. Conf. of State States, Citizens United and the http://www.ncsl.org/default.aspx?tabid=19607 (updated 2011) (noting

Jan. ‘Ti]n that 17 of the 24 states with laws affected the Citizens decision, legislation law,” listing United has been introduced to amend the bills). UNITED CITIZENS

II. is devoted decision Citizens United significant portion A even be Court should question whether the threshold decide. ultimately it does matters deciding the constitutional Kennedy joined majority-justice in the Indeed, the five Justices Thomas, Justice Scalia, Roberts, Justice Justice Justice Chief why they were explain attempting pages numerous Alito-eonsumed (1) expressly had dismissed Citizens United a claim that addressing (2) (its constitutionality), challenge to the law’s facial district court than were broader arguably grounds deciding the case (3) claim, overruling prior United’s Citizens necessary to resolve See Citizens of stare decisis. notwithstanding the doctrine precedents 130 S. Ct. 888-96, (majority opinion); United, Ct. at 911-13 130 S. to these Alito, J., concurring). regard With (Roberts, C.J., & 917-25 Ginsburg, Justice joined by Justice issues, Stevens the dissent-Justice being majority simply Sotomayor-accused Breyer, and Justice us,” having case before limited nature of the “unhappy with “changing] the case to and thus of prior precedents, “disdain”for Citizens change the law.”5 opportunity an give themselves majority’s also criticized the The dissent S. Ct. at grounds, on facial to invalidate the statute determination “ principle the fundamental ‘contrary approach this because striking secondary of‘implicitly effect ’’and has the judicial restraint’ well,” the record but also because many state laws as great down United, 130 Citizens Court was “nonexistent.” before Bipartisan had crafted the Congress Ct. at 932-33. Whereas S. (BCRA) ‘in to a virtual response Act Reform Campaign had legislation corruption previous of research on mountain Congress’ efforts without avert,” majority negates ‘how failed to have been counterparts or its state-law of evidence on how §203 shred United, 130 United.” Citizens entity than Citizens affecting any other height of recklessness that ‘it is the argued The dissent S. Ct. at 933. and its reasoned deliberation Congress’ years bipartisan to dismiss basis, confirming that the statute without first judgment on this as, be, a restraint on electoral function was intended to or will question Finally, the dissent United, 130 S. Ct. at 969. competition.” 5 phenomenon Unfortunately, remaking exclusive to cases is not a Bailly LLP, Bancorp, v. Eide 2010 e.g. Inc. Sec. Bank and Glacier Court. See Western (Nelson, J., concurring part 34, 71-82, 291, 249 P.3d 35 359 Mont. ¶¶ MT 259, 253 65-67, 360 State, P.3d part); PacifiCorp MT Mont. dissenting ¶¶ v. 2011 (Rice Nelson, JJ., concurring). & 847

251 argued that the on case could have been decided various narrower 936-38, grounds, United, Citizens 130 S. Ct. at and that the majority give decisis, had proper failed deference to the doctrine of stare point, S. Ct. 938-42. On this latter the dissent observed that rights not protects personal involving property [sJtare decisis ability contract but shape also the of the elected branches to their laws in an Today’s effective coherent fashion. decision away a power long permitted takes that we have these branches to exercise. State on their legislatures authority have relied regulate corporate electioneering, [Austin confirmed v. Mich. Commerce, (1990)], Chamber U.S. 110 S. Ct. 1391 for more than a The century. Congress Federal has relied on this authority time, for a stretch of and it comparable specifically throughout relied on Austin years spent developing it 100,000 debating BCRA. The total record it was compiled pages long. Pulling rug out the beneath after Congress affirming the six constitutionality years ago great shows for disrespect §203 coequal branch. United, original, Citizens 130 S. Ct. at 940 (emphasis footnotes omitted).6 IWhile believe the Citizens persuasive United dissent makes a

argument that majority need not and should have rendered such a holding, broad constitutional the fact remains that the majority so, striking did Thus, down the federal law as invalid. facially my focus majority hereafter is on specifically what the held regarding corporate independent expenditures I speech. approach step- this in fashion. by-step

A. First Applies Amendment to Political Speech Corporations provides The First ‘Congress Amendment shall make lawno abridging

... of speech.” protection freedom This extends corporations and to the context of speech. dissent, foregoing In addition to the criticisms I note that the Citizens majority’s approach flouting very United has also been criticized for rhetoric espoused against ‘judicial e.g. conservatives have decades so-called activism.” See Chemerinsky, Op., Campaign Erwin Conservatives Embrace Judicial Activism in (Jan. Ruling, 22, 2010); Dibadj,

Finance L.A. Times see also Reza Citizens United as (2010-2011) Corporate and Narrative, 39,40-48 (noting Law 16 Nexus “technical concerns” problems” majority’s III, approach); “constitutional J. Harvie Wilkinson Abortions, (2009) Guns, Unraveling Law, and the Rule 95 Va. L. Rev. 253 Of five-justice (criticizing majority adhering judicial the same for not to a conservative methodology (2008)). Heller, 570, 128 in Dist. v. Columbia 554 U.S. S. Ct. 2783 252 Amendment lose First does not speech Political 900.

S. Ct. at United, Citizens corporation. source is a its simply because protection not decisive identity speaker 900. The Ct. at 130 S. and other corporations protected; speech determining whether debate, discussion, individuals, to the associations, contribute like First Amendment ideas that the ofinformation the dissemination The United, 130 S. Ct. at 900. to foster. Citizens seeks corporations of political speech that argument rejected thus ‘has the First differently under treated should be or other associations ‘natural are not associations such simply Amendment because ” United, S. Ct. at 900. 130 persons.’ Citizens Speech Political Corporate 441b Burdens B. Section (2 §441b, by §203 as amended U.S.C. The law at issue BCRA) treasury using general from and unions corporations prohibits advocate expressly independent expenditures make funds to the broadcast prohibits It also defeat of candidates. election or election days primary of a within 30 electioneering communications United, 130 S. Ct. at election. Citizens days general of a and 60 is a ban expenditures corporate independent on prohibition This It is true that United, S. Ct. at 898. speech. on Citizens segregated fund” may “separate establish a and unions corporations (known PAC) purposes express committee or as a action moneys The received electioneering communications. advocacy or employees limited to donations stockholders the PAC are unions, of the union. or, members in the case corporation Nevertheless, ‘is United, aban §441b 130 S. Ct. at 887-88. Citizens by a the fact that a PAC created notwithstanding speech United, S. Ct. at 897. This is Citizens speak.” can still corporation corporation. from the So a association separate “[a]PAC is because not allow ban does expenditure from 441b’s exemption PAC § (citation United, 130 S. Ct. at 897 Citizens speak.” to Tejven omitted). a somehow allow Furthermore, if a PAC could PACs does option not-the to form it does corporation speak-and are with 441b. PACs problems Amendment § not alleviate the First subject alternatives; to administer they expensive are burdensome United, S. Ct. at 897. Citizens regulations.” extensive Scrutiny Strict Standard of Review: C. simply cannot political speech might it be maintained “While matter,’’the following standard categorical as a or restricted

be banned the relevant First protecting framework for a sufficient “provides United, 130 S. Ct. at 898. in this case.” Citizens Amendment interests subject Laws that political speech scrutiny, burden are to strict which requires government prove the restriction furthers compelling narrowly interest and is tailored to achieve that interest. United, Citizens 130 S. Ct. at 898.

D. The Governmental-Function Interest prohibits The First Amendment distinguish restrictions that among speakers, allowing different speech by some but not others. United, Hence, Citizens 130 S. Ct. at 898. the government “may commit a wrong constitutional when it law identifies certain preferred speakers.” 130 S. Ct. at 899.

Court has upheld narrow class of operate restrictions that disadvantage persons, certain rulings but these were based on “the proposition that there are certain governmental functions that operate cannot without some particular restrictions on kinds of speech”-e.g., the public education, function of school the penological objectives of system, the corrections and the capacity of the government to discharge military its responsibilities. United, Citizens 130 S. Ct. at 899. This interest is not applicable here because the corporate independent expenditures at issue would not interfere with governmental Quite functions. contrary, the ‘it is inherent in the nature of political process the that voters must be free to obtain information from diverse sources in order to determine how to cast their United, votes.” Citizens 130 S. Ct. at 899.

E. The Antidistortion Interest The Supreme Court in Austin v. Commerce, Mich. Chamber 494 652, U.S. 110 S. (1990), Ct. 1391 found a compelling governmental interest in preventing “‘the corrosive and distorting effects ofimmense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation public’s to the ” support for the corporation’s political ideas.’ United, Citizens 130 S. Ct. at 903 (quoting Austin, 1397). 660, 110 494 U.S. at S. Ct. at regard concerns in this are that corporations can “use resources amassed in the economic marketplace to obtain an unfair advantage political the marketplace,” and that corporate wealth can political “dominat[e]... the process” “unfairly influence elections” when it deployed is in the form of independent expenditures. Austin, 659, 660, (internal 494 U.S. at 110 S. Ct. at 1398 quotation omitted). marks The problem with this rationale,” “antidistortion however, is that

it is inconsistent with the First United, Amendment. Citizens 130 “ S. Ct. at 904-08. For one thing, ‘the concept government may to enhance society in order of our of some elements speech the

restrict ” First Amendment.’ foreign to the wholly ofothers the relative voice omitted) (alteration Buckley (quoting United, Ct. at 904 130 S. Citizens curiam)). (1976) (per 1, 48-49, Ct. Valeo, 96 S. 424 U.S. v. has an interest the Government Buckley rejected premise the groups ability of individuals the relative equalizing ‘in stating specific Buckley was ofelections.” influence the outcome could campaigns” skyrocketing cost of that “the Amendment’s The First prohibition. governmental sustain ability to speaker’s “financial depend on the do not protections engage public discussion.” omitted). (citations United, S. Ct. at 904

Citizens “open with the rationale interferes the antidistortion Additionally, by permitting Amendment by the First protected ofideas marketplace” millions of associations speech of government ban are Most of these United, S. Ct. at 906-07. of citizens. Citizens fact which belies large amounts ofwealth-a without corporations small ground on the justified at issue is that the statute argument of wealth.” aggregations immense “distorting effects of it prevents event, any political speech at 907. In 130 S. Ct. Citizens democracy, and this is no less decision-making in a indispensable an rather than corporation comes from a speech true because ‘Corporations, like United, 130 S. Ct. at 904. individual. topics certain views. On individuals, do not have monolithic leaving them best may expertise, valuable possess sorts, including of all speech errors or fallacies point out equipped United, 130 officials.” Citizens and elected speech of candidates corporations, ofmanifold both By suppressing S. Ct. at 912. and their voices government prevents nonprofit, and for-profit voters on which advising reaching public viewpoints United, 130 Citizens hostile to their interests. or entities are persons that muffles the voices best doing, government Ct. at 907. In so S. economy deprives segments of significant the most represent to its information, knowledge, opinion vital the electorate of government United, at 907. 130 S. Ct. When function. Citizens may get his or her person “tocommand where power seeks to use its hear, may not it uses he or she or distrusted source information what First Amendment is unlawful. The thought. control This censorship to United, 130 for ourselves.” Citizens the freedom to think confirms at S. Ct. 908.

255 Anticorruption F. The Interest The argues speech may Government that political be

¶83 in order to or prevent corruption appearance. Buckley banned its sufficiently found interest important Court this to allow limits on United, (citing contributions. Ct. at Buckley, Citizens 130 S. 908 424 638). 25, at U.S. 96 S. at But the Buckley Ct. when Court examined a on independent expenditures, governmental ban it found “that the in preventing corruption interest and the appearance corruption is inadequate 45, [the justify Buckley, ban].” 424 U.S. at 96 S. Ct. at follow, For the that holding 647. reasons which is reaffirmed here. United, S. Citizens 130 Ct. at 908-11. “‘The of corruption quid pro quo: hallmark is the financial dollars ” United,

for Citizens 130 S. (quoting favors.’ Ct. at 910 Fed. Comm., Election Commn. Natl. v. Conservative Political Action 470 (1985)). 480, 497, Ct. limits,... “[C]ontribution U.S. 105 S. 1468 unlike independent expenditures, limits on an accepted have been prevent pro United, means to quid quo corruption.” Citizens 130 S. Ct. at Not only large 909. can direct contributions given be secure a quid pro quo, scope pernicious of such can practices never reliably United, be ascertained. Citizens 130 S. Ct. at 908 (citing 638). Buckley, 26-27, 424 at Thus, U.S. at 96 S. Ct. limits on direct contributions permissible against reality are to ensure quo United, appearance quid pro corruption. Citizens 130 S. Ct. at 908. Independent expenditures, contrast, a substantially have

diminished United, for potential abuse. Citizens S. Ct. at By 130 908. definition, an independent expenditure political speech presented to the electorate is not coordinated with a candidate. Citizens “ United, at 130 S. Ct. prearrangement ‘The absence of coordination ofan expenditure agent with the candidate or his candidate, undermines the of the expenditure value to the but also danger expenditures given quid pro alleviates will be quo ” improper United, commitments from the candidate.’ Citizens 130 648). at (quoting Buckley, S. Ct. at at U.S. S. Ct. Limits therefore, independent expenditures, chilling “have a effect extending beyond well the Government’s interest in preventing quid pro United, 130 quo corruption.” Citizens S. Ct. at 908. Buckley sufficiently “When identified a important governmental in preventing corruption appearance corruption, or the quid

interest was limited to pro quo corruption.” later, years S. Ct. 909. Two purported leave 256 could be corporate independent expenditures that

open possibility Bellotti, Bank v. See Boston corruption. to cause First Natl. shown (1978). However, 765,788 26,98 1407, 1422 n. 26 “we n. S. Ct. 435 U.S. including by those made independent expenditures, that now conclude corruption appearance do rise or the give not to corporations, United, 130 at 909. S. Ct. corruption.” Citizens or to have influence over access speakers may The fact that corrupt. mean these officials are Citizens elected officials does not that United, 130 S. at 910. Ct. representative and influence are not ... avoidable

‘Favoritism to It is nature elected favor representative in the of an politics. and, by necessary corollary, to favor the policies, certain voters support policies. those It is well understood and contributors who reason, only reason, if legitimate a substantial and not the to that for, to, to make one candidate over cast a vote or a contribution respond by those producing another the candidate will Democracy is supporter premised outcomes the favors. political responsiveness.” United, (ellipsis original) (quoting S. Ct. at

Citizens 130 910 Commn., 93, 297, U.S. 124 S. v. Fed. Election Ct. McConnell (2003) J., J., Scalia, J., dissenting)). & (Kennedy, Rehnquist, C. access, furthermore, or appearance influence will cause noted, democracy. independent to lose in our As an electorate faith is, definition, expenditure by presented that is not a candidate. The fact that a electorate coordinated with speaker, willing money try or corporation, any spend other persuade people voters have the ultimate presupposes any suggestion inconsistent influence over elected officials. This is part governance the electorate will refuse to take democratic any made political speech corporation because of additional or United, Ct. at speaker. other Citizens 130 S. 910. sum, quid pro is the financial corruption quo: In hallmark United, at favors. Citizens 130 S. Ct. 910. The

dollars sufficiently government preventing quid has a important United, it. 130 Ct. pro quo corruption appearance or the of Citizens S. Indeed, pro quo arrangement at be covered quid would United, Independent bribery laws. 130 S. Ct. at 908. Citizens to, of, however, appearance “do not lead create expenditures, quid fact, In there is scant evidence that pro quo corruption. Ingratiation access, expenditures ingratiate. even independent event, United, 130 S. Ct. any corruption.” are not Citizens (citation omitted). Therefore, ‘independent expenditures, including by corporations, give corruption those made rise to or the do not appearance corruption.” Ct. at 909. 130 S. Of course, if officials to improper elected succumb influences from their independent expenditures, judgment, put surrender best expediency surely concern; there principle, before then is cause for but attempting dispel reality to either or appearance the the these influences, outright ‘ta]n ban on ... corporate political speech is not a United, remedy.” permissible Citizens 130 S. Ct. at 911.

G. The Shareholder-Protection Interest argues corporate Government that independent expenditures ¶89 dissenting can be limited in the interest protecting shareholders being political to fund compelled corporate speech with which they agree. Amendment, however, do not The First not does allow the government speech restrict based on a shareholder’s disagreement political views of the corporation. Citizens United, is, at furthermore, S. Ct. 911. There little evidence of abuse that procedures cannot be corrected shareholders through corporate democracy. United, Citizens 130 S. 911. Ct. at Foreign

H. Influence ‘We need reach question not whether ¶90 the Government has a compelling in preventing foreign interest or individuals associations from influencing our Nation’s political process.” United, Citizens Ct. at S. 911.

I. Conclusion Based foregoing, on the Supreme ¶91 Court overruled its decision in Austin. ‘We return to the principle established in Buckley and Bellotti that the may suppress Government political speech not on the speaker’s basis of the corporate identity. governmental No sufficient justifies political speech limits on the nonprofit or for-profit corporations.” added). United, Citizens S. (emphasis 130 Ct. at 913 Accordingly, Court held that BCRA restriction on §203’s electioneering communications and 2 U.S.C. prohibition 441b’s § use ofcorporate treasury funds express advocacy for both were invalid. (with United, Citizens 130 S. Ct. at The 913. Court dissenting) Justice Thomas on uphold then went BCRA’sdisclaimer provisions against disclosure an as-applied constitutional challenge. at 130 S. Ct. 913-16.

III. THE PLAINTIFFS’ CLAIMS examining Before this §13-35-227(1), Court’s rationales upholding misconceptions regarding the dispel MCA,7 necessary it is some claims. plaintiffs’ Marbut, Gary the founder of First, the asserts neither (MSSA), Champion, nor Kenneth Association Shooting Sports

Montana Inc., demonstrated Champion Painting, has sole shareholder of or censored in which Montana law has hindered “any way” material course, 17. Of Marbut and activity speech. Opinion, or political ¶ their lawsuit, rights are speech are to this their Champion parties not Hence, Champion, Marbut and as issue whether here. individuals, activity hindered censored their have been or speech totally question irrelevant. The whether speech entities, Champion Painting, incorporated MSSA have rights of infringed. been Second, asserts MSSA has failed to demonstrate the Court impaired by its 227 because law § has been MSSA to its members’ dues on spend no restriction on

places this, As Court cites the advocacy. Opinion, support ¶ Commissioner of Political Practices Dennis affidavit former however, specifically says, is this: TMSSA] Unsworth. What Unsworth spend its dues and has been continues be free to member status, treasury regardless long from of its as donations its filing requirements complies as it with the described above meets added.) voluntary (Emphasis the criteria a association.” for Baker, in program supervisor of the Office of the Mary affidavit Practices, “there Political likewise states that Commissioner of prohibit in laws nothing campaign Montana’s finance that would from registering making [MSSA] itself as committee corporate treasury, from its it meets our independent expenditures if added.) voluntary criteria (Emphasis association.”8 office’s for According affidavit, criteria follows: Unsworth’s those are as incorporates spend A can voluntary association that its §13-35-227, MCA, occasionally “§227.” 7 1 refer to hereafter ‘Section 227” or exemption ‘Voluntary Rather, An for associations”is not codified in the statute. §227(1). except 2003, “policy”to Prior to it is the Commissioner’s such associations from category corporations nonprofit statutorily permitted narrow was to make a contributions general prohibition issues, notwithstanding expenditures to or connection with ballot §13-35-227(1), expenditures. (4), corporate contributions and See on (2001). light Argenbright, But in Mont. v. 226 F.3d 1049 MCA Chamber Commerce (9th 2000), corporations prohibited making held that cannot be from direct Cir. which expenditures campaigns, Legislature corporate the statute amended in ballot initiative Montana, 2003, accordingly. Laws of ch. 59. See members’ on campaign dues donations contributions and (1) independent expenditures treasury, from its if it: is formed for ideas, the express promoting political and could purpose not (2) engage activities; has business no shareholders or other persons affiliated so as to a claim on or earnings; have its assets (3) is not corporation, established a business and does not accept corporations. contributions from business Contrary implication, to the Court’s has there been no determination in this case that in fact criteria MSSA meets the of a “voluntary And association.” one ofthe exhibits attached to Unsworth’s affidavit satisfy indicates that MSSA does not the criteria. The exhibit an Commissioner “advisory issued former opinion” Linda 25, Vaughey in which September she addresses whether the (PRG) nonprofit corporation People for Responsible may Government engage in political activities in connection with candidates for public office.Vaughey premise starts with the on its “appears face §227 prohibit including all corporations, nonprofit corporations, from making or expenditures candidates, contributions connection with other than through separate, segregated Vaughey funds.” then that, observes based on Fed. Election Commn. v. Mass. Citizens for Life, Inc., 238, 263-64, (1986), 479 U.S. 107 S. Ct. there is an exception corporations which three nonprofit meet the criteria Vaughey finally listed above. determines that PRG does meet the third criterion because

[njothing in the Bylaws, Articles of or the other Incorporation, confirms you information have provided that PRG was not established aby organization. business or a corporation labor Moreover, you any have not provided establishing information that PRG does not directly indirectly or donations accept or anything contributions value business or organizations. labor [Emphasis added.] here, Likewise there is no evidence record-mot Marbut’s (attached affidavit, in MSSA’s Incorporation Articles of to Marbut’s affidavit), in affidavit, affidavit, Unsworth’s or in any in Baker’s other document-establishing that MSSA “does not directly indirectly accept anything donations or from contributions of of value business Hence, organizations.” or labor not qualify MSSA does ‘Voluntary definition, a association” under the Commissioner’s and MSSA is not to general treasury allowed use its funds to make independent expenditures connection with candidate elections. Complaint MSSA states in the First Amended to it wishes “useits light In candidates.” or directly support oppose funds to corporate Court §227(1) doing so. The discussion, bars MSSA foregoing or minimal has no that “the statute therefore, stating wrong, flat 46. Opinion, ¶ on MSSA. impact” Champion impact on likewise misstates Third, the Court improperly to be again seems thing, the Court For one

Painting. issue, rather are not rights, which Champion’s on focused Opinion, are at issue. rights, which Painting’s speech Champion than Painting Champion only reason that the suggests also 18. The Court ¶ (Champion) that its shareholder in this lawsuit is so participating using company endórsemenos]” “candidate to make can be allowed asserts that because Finally, the Court 18. Opinion, ¶ name. a PAC to advocate shareholder, can establish simply as sole Champion, decide funds that he will expend Painting’s interests Champion impact no or minimal 18, “the statute has contribute, Opinion, ¶ wrong on all counts. The Court is 46. Champion,” Opinion, ¶ ... Complaint, First Amended According to the funds to educate corporate Painting spend intends to Champion candidates and Bozeman about citizens of Montana negatively impact or positively that will either and ballot issues intends to businesses, Painting Champion small Montana’s relating issues candidates and oppose or publicly support spent funds will be businesses. Montana’s small advertisements, and to create radio spots TV purchase and fliers .... distribute brochures being “In addition to same effect: affidavit is to the Champion’s individual, Painting Champion I like for active as an would politically a Painting is small Champion . . . Since active. politically to be my than voice when business, more effective its voice will be on small may impact have an or candidates who supporting opposing then, Painting’s claim is Champion apparent, It is businesses.” ability to ability speak, not its shareholder’s corporation’s about the §227(1) concedes, expenditure forbids And as the Court speak. oppose candidates. support funds to Painting’s corporate Champion by a sole corporations held Nothing exempts Opinion, §227 ¶ could Champion Painting theory that As for the Court’s shareholder. this rejected PAC, through Opinion, speak ¶ again and noted below. discussed above approach as IV. COMPARISON in the provided of the rationales comparison I now turn to Court Opinion Supreme rejecting the statements the Court’s with Again, constitutionality the issue is the specific those rationales. 227(1)’s expenditures a prohibition corporate connection with § or a a political supports opposes candidate committee that or candidate laws, a political party. prohibition or disclosure on direct contributions, Corrupt and the as a whole Practices Act have Opinion, 2, been 8. challenged. not ¶¶

A. The Political Committee Alternative 227(1) corporation may Section states that not make “[a] a ¶99 expenditure or contribution an in connection with a candidate or a supports opposes that a or a political political committee or candidate 227(3), however, party.” provides “[t]his Section section does not or prohibit separate, segregated establishment administration of a [known fund or political making PAC] as a committee to be used for or if political expenditures contributions the fund consists voluntary from an contributions solicited individual who is a shareholder, employee, corporation.” Opinion, member See 4.¶ that, Montana, The Court asserts political committees are

“easy establish,”“easy use,” to and an “effective alternative direct corporate spending for engaging political speech.” Opinion, ¶¶ Court, The Supreme however, 47. “A separate stated: PAC is a corporation. association from the exemption So the PAC from [the law’s] expenditure does not corporations speak.” ban allow Citizens (citation omitted). United, 130 S. at 897 Moreover, “[e]ven Ct. if a PAC corporation could somehow allow a to speak it does not^.he —and option to form PACs does not alleviate the First Amendment added). problems.” United, Citizens 130 S. Ct. at 897 (emphasis ignores The Court the Supreme holding Court’s that a PAC is “separate” corporation thus, from and, is not a valid alternative to Indeed, direct corporate expenditures. the Court asserts that rejected burdensome, Court PACs extensive, ‘because expensive regulations Federal applied.” Opinion, 12. This ¶ Granted, is false. briefly noted that ‘PACs are alternatives; they burdensome expensive are to administer and subject regulations.” United, to extensive Yet, Citizens 130 S. 897. Ct. at even federal implemented” if PACs as “easily says were as the Court are, Opinion, Montana’s PACs problem fundamental ¶ PACs still “A separate remains: PAC is a from association corporation. PAC exemption expenditure [the So the law’s] ban United, not does allow speak.” Citizens 130 S. Ct. at 227(1)] omitted). (citation ‘[Section ban on Bottom line: a PAC created notwithstanding fact that corporate speech 227(3)] speak.” under can still corporation permitted [as § contrary holding is plainly The Court’s 130 S. Ct. wrong. Influence Anticorruption Restraining Corporate

B. examples corruption” cites of“well-financed The Court various Heinze, A. Augustus Company, the Anaconda and W. perpetrated by F. examples Notably, some of these involved 23-28. Opinion, ¶¶ Clark. (i.e., quid corruption dollars bribery pro quo blatant favors), any independent them involved it is clear but (i.e., the electorate that is presented to expenditures candidate) in In exchange political with a favors. not coordinated picture any event, paint to a dismal proceeds the Court then in corporate persisted “domination”and Influence” has Montana. discussion, the Opinion, 29. From this Court concludes follows. ¶ challenged First, “compelling had a interest”to enact the statute voters political [in Montana] ‘the real and was power 1912 because social to own by managers further their business powerful corporate wielded interests,” up “corrupt practices” the fed with the and and voters were controlling interests ‘heavy-handed special influence” asserted Second, the ‘has Opinion, institutions. 36. statute ¶ Montana’s autonomy” a from preserve degree worked to and social promote to their own corporate figures who seek interests. “shadowy” a interest to Opinion, finally, support 37. And there is still sufficient ¶ influence, corporate sparse population, the statute because ‘Tissues dependence agriculture development, and resource upon extractive corridor, and make transportation campaign as a low costs location to especially corporate vulnerable continued efforts 37. Opinion, control.” ¶ unconstitutional, however, government 103 It for the to patently

¶ might on that the otherwise speaker ground speaker silence a government undesired of ‘influence” or “control” exert an amount rationale, any class of politics. speakers Under such a disfavored Supreme if too ‘influential.” The Court thought could be censored be political speech can repudiated the notion unequivocally corporations obtaining from an prevent be restricted “as means to by using advantage political marketplace unfair resources United, 130 marketplace.” in the economic Citizens S. Ct. amassed omitted). (internal holding was founded quotation 904 marks Austin’s by the that “[c]orporate concern Court here: expressed the same

263 unfairly wealth can influence elections when it is in the form deployed Austin, of independent expenditures.” 494 110 U.S. at S. Ct. at United, however, 1398. The Court in Citizens held that overruled, “Austin is so it no provides allowing basis for limit Government corporate independent expenditures.” 130 S. Ct. at 913. ‘Rejected premise The that the Government has an equalizing ability the relative of individuals and groups United, to influence the outcome of elections.” 130 Citizens (internal omitted). Ct. at quotation S. marks ‘Favoritism influence are not ... avoidable in representative politics,” ‘Tr]eliance on a generic favoritism or theory... influence is at odds with standard First analyses Amendment it susceptible limiting because is unbounded and principle.” no United, Citizens 130 S. (ellipses original, Ct. at 910 internal omitted). quotation marks the point, More to the First Amendment prohibits distinguishing “restrictions among speakers, different allowing speech United, some but not others.” Citizens S. Ct. at “ ‘In the realm of protected speech, legislature constitutionally disqualified dictating subjects from about which ” may persons speak speakers may public who address issue.’ United, S. Bellotti, 784-85, 130 Ct. at 902 U.S. at (quoting 1420). 98 S. Ct. at government may not bar contributing “open to the marketplace” ideas. Citizens Ct. S. at 906. “WhenGovernment seeks to use its full power, including law, criminal a person may get command where his or her hear, information or may what distrusted source he or she it uses censorship thought. to control This is unlawful. The First Amendment confirms the United, freedom to think for ourselves.” Citizens 130 Ct. S. at 908. The Court tries to distinguish

¶105 Citizens as upon United “decided its facts” involving only elections, and federal laws federal while this case law, “concerns Montana Montana elections and ... Montana history.” 11,16. Opinion, Yet, law, Bellotti ¶¶ involved a state and the Supreme Court in expressly Citizens United noted that

[Bellotti] on rested the that the principle Government lacks the power to ban did speaking. Bellotti not address constitutionality the of the State’s ban on corporate independent expenditures to support view, however, In candidates. our that restriction would have been unconstitutional under Bellotti’s central principle: the First Amendment does not allow political speech restrictions on a speaker’scorporate identity. based 264 added, break United, paragraph 903 (emphasis S. Ct. at 130

Citizens omitted). influence”rationale, “corruption”rationale the Court’s Like its “control,” history of‘bribery,” Regardless untenable.

is also Court, Opinion, recounted corporate manipulation” “naked challenge statutory prohibition do 23,25,28, plaintiffs here not ¶¶ challenge Rather, they prohibition on contributions. corporate on very clearly And the stated expenditures. corporate including by corporations, those made independent expenditures, “that Citizens appearance corruption.” rise or the give corruption do not to Buckley sufficiently identified a United, 130 S. at 909. “When Ct. or corruption governmental preventing important quid pro quo limited to corruption, interest was appearance United, Ct. at 909. ‘The hallmark of corruption.” 130 S. Citizens pro dollars corruption quid quo: political is the financial for favors.” omitted), (internal United, quotation S. Ct. at 910 marks Citizens to, do the appearance not lead create ‘independent expenditures of, fact, In is scant evidence that pro quo corruption. there quid access, Ingratiation and expenditures ingratiate. even independent United, event, S. Ct. at any corruption.” are not Citizens (citation omitted). 227(l)’s As for Court’s fear that invalidation of § expenditures by corporations will return

prohibition independent domination, pre-1912 days corruption corporate to its Court answered this concern follows: improper If elected influences from officials succumb judgment; if their independent expenditures; they surrender best they surely there expediency principle, and if before then put weight by [the give attempts cause concern. We must dispel appearance reality or the legislature] to seek either however, law, of these influences. remedies enacted must and, Amendment; it comply with the First is our law our less, speech, governing tradition more rule. An political ... outright corporate permissible ban on is not remedy. added). Ct. at (emphases 130 S.

C. Citizen Protection allowing independent The Court observes that unlimited money process into the Montana expenditures change campaigning by shifting emphasis “drastically would spending by corporations raising funds.”Opinion, Direct ¶ the “significantly Opinion, could also affect outcome of elections.” 32. ¶ explains population enjoys The Court that Montana has a small political campaigns person-to-person marked contact and a low cost advertising Thus, of to other 30. the compared Opinion, states. ¶ money of of or corporate support opposition infusion unlimited to targeted average candidate leave the citizen candidate would “unable compete against to the candidate.” 38. corporate-sponsored Opinion, ¶ Furthermore, really voters feel do not they “count”in political process they the unless can a material financial make contribution; concerned, therefore, they that special are interests sway. Opinion, percentage campaign hold 31. The of contributions ¶ from individual much voters is less states do not have spending. restrictions on At the corporate Opinion, present, 33. ¶ House, Senate, individual contribution limit for Montana and District is Court races and for Opinion, $160 $310. elections Thus, 38. with the money infusion unlimited corporate support ¶ opposition candidate, of or targeted citizens, to a ‘Montana who for years over 100 have made their modest election contributions meaningfully count[,] effectively would be out of process.” shut 38. Opinion, ‘Clearly impact ¶ unlimited donations a dominating creates on the impact political process inevitably minimizes the impact of individual Opinion, citizens.” 41. The State ¶ encouraging ‘has an interest in participation the full of the Montana Opinion, 38; electorate.” Opinion, accord ¶ ¶ While I protect understand the Court’s to desire ability compete, ability citizen candidates to and the citizens meaningfully participate and be heard in the process, this “ rationale has been rejected. government may ‘[T]he concept restrict the society of some elements of our in order to enhance ” wholly the relative voice ofothers is foreign to the First Amendment.’ (brackets 130 S. Ct. at 904 in original) (quoting 649). Buckley, 424 48-49, U.S. at 96 S. Ct. at The reasoning Court’s essentially a repackaged rationale, version of the antidistortion which Court answered as follows: sought

Austin to defend the rationale antidistortion as a means prevent corporations obtaining “an unfair advantage in the political marketplace” using “resources amassed in the economicmarketplace.”But Buckley rejected premise that the Government has an interest ‘in equalizing ability relative individuals and groups influence the outcome of elections.” Buckley specific stating was skyrocketing cost governmental campaigns could not sustain protections depend do not Amendment’s First

prohibition. ability public discussion. engage financial speaker’s (citations United, 904 and some internal 130 S. Ct. at Citizens omitted). speech that cannot be ‘The rule quotation marks necessary consequence a speaker’s a wealth is limited based suppression the generally prohibits the First Amendment premise that United, identity.” Citizens speaker’s the speech of based on theory is invalid under citizen-protection Ct. at 905. Court’s 130 S. United. Citizens Judges Elected

D. “protecting interests in The Court next discusses Montana’s ¶111 judges,” providing its of elected “an system preserving and the judiciary,” “preserving fair and and impartial independent, independence.”Opinion, 39-40. judicial propriety ¶¶ of and appearance judicial particularly be fears ‘Montana elections would The Court large both in terms of independent spending, levels of vulnerable perception impartiality.’’Opinion, in terms of public fairness and Day recent The Court cites Sandra O’Connor’s observation 44. ¶ impartiality judiciary in the ofthe real and the “‘crisis of confidence 5,9 not Opinion, Noting 45. Montana is immune from growing.’ ¶ corporate-funded “super groups,” Court spender influence precluding a compelling concludes that Montana “has interest judicial upon its interest in expenditures on elections based impartiality integrity, preserving and its interest insuring judicial its public judiciary protecting confidence the due litigants.” 45. process rights Opinion, ¶ concerns,9 I share the Court’s 101do not While some of believe single Court will allow a state out as a in judicial elections. First of group prohibit speaking them from all, already, prohibits as noted the First Amendment “restrictions among allowing distinguishing speakers, different some but United, point, 130 S. Ct. at More to the “the not others.” Citizens 898. 9 in the It is somewhat ironic that the Court would cite Justice O’Connor context system discussing protecting preserving its of elected Montana’s ‘interest selecting openly judges. judges,” given has critical of form of See that she been this 2528, 765, 788-92, Republican Party White, Minn. U.S. 122 S. Ct. v. 536 2542-44 (2002) (O’Connor, J., concurring). Nelson, Interpreting Keeping C. Faith with Vision: Constitution See James (2010). Generations, L. Rev. Future 71 Mont. This and political speech First Amendment does not allow restrictions based on identity.” United, speaker’s corporate S. Ct. Co., 868, 129 Secondly, Caperton Massey v.A.T. Coal 556 U.S. (2009), S. Ct. 2252 which the Court cites at is of no assistance. ¶ Caperton judge required held that a was to recuse himself “when a person personal particular significant with a stake in a case had a disproportionate placing judge by raising influence in on the case directing judge’s campaign funds or election when the case was pending or imminent.” 129 S. Ct. at 2263-64. As the explained remedy “[t]he later in Citizens of recusal based was on a litigant’s process right judge. due to a fair trial before an unbiased limited Caperton’s holding was the rule that judge must be recused, not litigant’s political speech that the could be banned.” 130 (citation omitted). words, remedy S. Ct. at 910 In other recusal is the for the concern "protecting process rights litigants” the due 45), (Opinion, banning corporate speech. ¶ Third, dissent, Justice Stevens raised this exact issue in his pointing out that majority judges through

[t]he of the States select their popular elections. At a time judicial when concerns about the conduct of elections reached a pitch, today have fever the Court unleashes the floodgates corporate of and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the that, worst abuses. This will be small comfort to those States after today, may longer ability place no have the modest on limits corporate electioneering they even if believe such limits to be maintaining critical to the integrity judicial systems. of their (citations omitted). United, 130 S. Ct. at 968 response, In the majority certainly could open possibility judicial have left the that implicate unique justifying elections interests restrictions on expenditures particular so, in that context. majority The did not do rather, majority, however.11 The remained firm and categorical: the First political speech Amendment does not allow restrictions based on a speaker’s corporate identity, and speech restrictions aimed at reducing ability the relative of the influence outcome 903, elections are invalid. Citizens 130 S. Ct. at 904. Lastly, Supreme White, 765, Court’s in decision 536 U.S. 11Notably, Supreme eight years rejected picture Court earlier “not a true system” judiciary completely separate of the American the notion that an elected enterprise “representative government.” White, 784, 122 from the 536 U.S. at S. Ct. at 2539. by the Court 2528, strongly indicates that the interests cited 122 S. Ct. corporate speech judicial in prohibiting are insufficient here joined by Chief Justice Supreme The Court-Justice Scalia elections. O’Connor, Kennedy, and Justice Rehnquist, Justice Justice judicial Court’s canon of Thomas-held that the Minnesota clause”) (the judicial candidates for prohibiting conduct “announce legal announcing disputed election from their views White, 788, 122 the First Amendment. 536 U.S. at S. Ct. issues violated support at The asserted in of the announce clause were interests present the same interests asserted the Court case: judiciary and preserving impartiality preserving of the state judiciary. appearance impartiality of the of the state us, arguing reassert these two interests Respondents before process rights it the due compelling protects first is because it litigants, compelling preserves and that the second is because public judiciary. confidence in the (citation omitted).

White, In 536 U.S. at 122 S. Ct. at 2535 interests, analyzing these the White Court considered different meanings of the term Tack possible ‘impartiality.” meaning One is the against for or either to the party proceeding,” bias which “guarantees a party judge apply who hears his case will way any White, law to him in the same he it to applies party.” other 775-76, 122 536 U.S. at (emphasis original). S. Ct. at 2535 Without stating interest, expressly compelling whether this was a state Supreme Court held that the announce clause’s restriction on against for or particular assuring issues did not serve the interest equal application parties. White, to particular law 536 U.S. at 776, 122 meaning S. Ct. at 2535. Another is the Tack impartiality preconception against particular legal White, favor of or view.” U.S. at (emphasis original). S. Ct. however, disagreed, the proposition judge’s “[a] lack

of predisposition regarding legal the relevant issues in a case” is a compelling White, 777-78, 122 state interest. 536 U.S. at S. Ct. at 2536. Likewise, the Supreme possible Court concluded that a third an meaning-‘openmindedness”-was implausible basis the White, 778-81, announce clause. 536 U.S. at 122 Ct. at S. 2536-38. present discussion, Of relevance to the Supreme the that “the special observed White notion that the context of justifies electioneering abridgment right speak an out on disputed issues sets our First Amendment on its head. jurisprudence, qualifications Debate on the of candidates is at the core of our electoral freedoms, process edges.” First Amendment not at the (alteration, U.S. at 122 S. Ct. at 2538 and internal emphasis, omitted). quotation Concerning marks the relationship between judicial Amendment, elections and the First Court stated:

There is an obvious tension between the article of Minnesota’s popularly approved provides Constitution which that judges shall elected, be and the Minnesota Court’s announce clause places subjects which most of interest to the voters off limits.... disparity ABA, perhaps unsurprising, since the which clause, originated long the announce has an opponent been (it judicial opposition may elections. That certainly be well taken had the support Government), of the Founders of the Federal but permit First Amendment does not it to goal by achieve its leaving the principle of elections in place preventing while discussing candidates from what the elections are about. The greater power dispense with altogether elections does not include power the lesser to conduct elections under conditions of state-imposed ignorance. voter the State tap chooses to If energy and the legitimizing power process, democratic it must accord participants process ... the First rights Amendment that attach to their roles. (second

White, 787-88, 536 U.S. at 122 S. Ct. at 2541 ellipsis in omitted). original, brackets, citations, and internal quotation marks Justice O’Connor made a point similar in her concurrence: Minnesota has chosen to judges select its through contested popular In doing elections .... so the voluntarily State has taken on the to judicial risks bias result, described above. As a State’s claim that it significantly needs to restrict judges’ speech in order to protect judicial impartiality particularly troubling. If the State has a problem judicial impartiality, largely it is one brought the State upon itself continuing practice popularly electing judges.

White, 536 U.S. at (O’Connor, J., S. Ct. at 2544 concurring). Perhaps telling most are the Kennedy-who, remarks ofJustice noted, authored the majority opinion in Citizens United. Justice Kennedy agreed “judicial integrity is ... a state highest White, 793, 122 order.” J., 536 U.S. at S. (Kennedy, Ct. at 2544 concurring). He also acknowledged may that a state choose to have an judiciary, may elected strive to define those characteristics exemplify judicial excellence, may enshrine its definitions in a code of judicial conduct, may adopt recusal standards rigorous more than due judges who violate these standards. may and censure

process requires, 794, White, 122 S. Ct. at 2545. 536 U.S. at do, however, people censor what the hear may not [a state] What candidate is most decide themselves which they as undertake to for Deciding the relevance exemplary judicial likely to be an officer. voters, The right of the not the State. speech is of candidate unabridged principle here contradicts the that question law freedom. speech is the foundation concerned, many as Minnesota no doubt was The State of concerned, judicial thoughtful commentators are citizens and fundraising may and mass media age in an of frenetic campaigns Indeed, system. beginning from the disrespect legal foster for the rough-and-tumble that the there have been those who believed into ill bring governmental repute. our institutions politics would tendency governmental cure sought And some have this 74, See Sedition Act of ch. political speech. restrictions on however, always recognized, heads have Stat. 596. Cooler abridge the speech-not these measures freedom because insufficiently compelling, simply state interest but because are political speech expressly content-based restrictions on Amendment. The State cannot positively forbidden the First judiciary democracy, an elected and then assert that its opt for desired, abridgment compels speech. order to work as White, 794-95, added, (emphases 536 U.S. at 122 S. Ct. at 2545 omitted). quotation internal marks and some citations Kennedy in principle espoused Justice White-ttiat may people they state not “censor what hear as undertake to likely decide for which candidate is most to be an themselves exemplary judicial officer”4s consistent with the theme of the Citizens opinion: speech, “[I]t United is our law our tradition that more less, rule,” governing is the 130 S. Ct. at sufficient “[n]o limits governmental justifies on the reading 130 S. Ct. at 913. A fair nonprofit for-profit corporations,” or holding together reading in Citizens with a fair broad White, inevitably Amendment articulated in leads principles First can more corporate independent expenditures to the conclusion that no prohibited judicial they legislative be elections than can be in executive elections. Summary

E. sum, essentially this: The happened In what has here is (and White) rejected Supreme Court in Citizens United several interests; along, and this Court has now come governmental asserted off, can, them garbage retrieved those interests from the dusted them, them as slapped up a ‘Made in Montana” sticker on and held state statute. The grounds sustaining patently for unconstitutional here is its premise underlying approach erroneous the Court’s entire rejected governmental the asserted belief that 11, 16. applied Opinion, interests to federal elections. ¶¶ did the Court state that there was Nowhere its decision federal the PAC-as- something unique precluded about elections rationale, theory, antidistortion an-alternative justifications restricting independent interest as anticorruption all expenditures by corporations. Supreme simply rejected Court arguments outright, unqualified language. of these broad and Not that, Supreme expressly the Court noted that “Bellotti did not constitutionality address the of the State’s ban view,however, independent expenditures support candidates. In our that restriction would have been unconstitutional under Bellotti’s principle: central that the First Amendment does not allow identity.” restrictions based on a speaker’s corporate added) United, Bellotti, 130 S. Ct. at 903 at (emphasis (citing 435 U.S. 1420). 784-85, extremely misguided, 98 S. Ct. at This Court is therefore, in attempting rejected governmental to resurrect the under a unique” theory. interests Montana is

V. CONCLUSION demonstrated, As the Supreme ¶121 Court’s decision Citizens United is clear regard with to the First Amendment’s protection 13-35-227(1),MCA, corporate political speech. Section impermissibly speech by prohibiting corporations restricts such “an making expenditure in connection with a candidate or a political committee supports that or opposes political party.” candidate or a The statute is, therefore, facially unconstitutional under Citizens United. said, above, That and as noted I agree, principle, at least in arguments with the and expressed by Attorney concerns General frustrated, and the amici supporting deeply curiae the State. I am as many Americans, are with reach of Citizens United. The First Amendment has position now been elevated to a vaunted and isolated so as to extravagant rights political speech endow and, rights, with those and exaggerated power influence voters elections. suggests Professor ‘tt]he Howell that disconnect between corruption” statements about Caperton’s]

['Citizens United’s Corrupt its Practices Act provides opportunity preserve Montana an Larry Howell, Time judicial Upon elections. See Once applied United, Copper War Caperton, in the West: Citizens and the (available my I Kings, http://mtlr.org). part, at 26 For own doubt grant corporations will be successful. In its zeal to approach summarily Court rights political speech, unlimited decision in with the statement Caperton Caperton dismissed its contrary” holding ‘is not to the its “was limited to the rule that because recused, judge litigant’s political speech must be not that the could added). (emphasis be banned.” Citizens 130 S. Ct. at 910 This statement, along with the observations of the dissent in Citizens majority concurring opinions United the statements White, eventually lead me to conclude that Citizens United will be judicial elections,12leaving to state as the applied remedy recusals sole corporate expenditures where have or corrupted judge biased judges at issue.13 imposed judiciaries, Once Citizens United is on elected state I Stevens, Breyer,

am concerned-as were Justices Ginsburg, (see Sotomayor; my colleagues as are former Amicus Brief of Former Hunt, Leaphart, Justices William William Regnier, Terry (Apr. 27, 2011)); James Trieweiler and John Warner today’s and as the Court in Opinion-that judicial elections will little than corporate bidding become better wars that elections for partisan already suggested, therefore, offices have become. I have may-and probably Montana’s voters should-amend the Montana Constitution implement system selecting a merit judges. See Nelson, Introduction, 1, James C. (2011); 72 Mont. L. Rev. 5-6 W. cf. (2011) Recusal, Leaphart, Right William First 72 Mont. L. Rev. 287 (suggesting that adopt Montana an enforceable mechanism for exists). removing justices potential when bias 'While, Court, 125 as a I member of this am bound to follow ¶ Citizens 12 (¶¶ 116-118, supra), As reflected in the discussion of White and as I have previously (Nelson, 310), system electing judges noted 71 L. Mont. Rev. at and justices presently support appointed judiciary. finds little or esteem from the federal 13Perhaps, ironically, pass way judge it will come to that the best to insure that a justice involving particular corporation corporation does not sit on a case is for the vigorous expensive campaign supporting judge’s to run a election. United, agree I do not have to with the Court’s decision.14 And, clear, starters, absolutely agree to be I do not with it. For corporations disadvantaged notion that are in the realm Indeed, unbelievable. it has astounded most Americans. The truth is power Congress wield inordinate state legislatures. government It is hard to tell where ends and corporate America begins; my the transition is seamless and In overlapping. view, Citizens United has “open turned the First Amendment’s marketplace” of ideas into an auction house for Friedmanian15 corporatists. synonymous Freedom of is now with freedom to spend. Speech equals money; money equals democracy. decidedly This founders, was not the view constitutional who favored the preeminence big ofindividual interests over those of business. Citizens United, 130 (dissenting S. Ct. at 949-50 opinion). Second, I disagree premise with the that unlimited corporate

political speech is essential to “enlightened self-government” and aids the electorate in making “informed choices.” Citizens 130S. Ct. “[rjhetoric 898,907.1 agree ought not reality.” obscure United, 130 S. Ct. at I agree 907. But cannot that the Citizens United majority’s “reality.”For thing, views reflect one generally voters do not desire, time, have the much sophistication, less the or ability, to sift through upon ads, hours hours jumbo, of attack mumbo (of sound bites in order to winnow truth which there often seems to be little) (of

very from fiction and unfortunately half-truths which there seems to be an supply).16 endless The Supreme Court believes III, Guns, Abortions, Unraveling J. Harvie Wilkinson and the Rule Cf. Of (2009) (‘It Law, duty 95 Va. L. judges Rev. 255-56 is the solemn on the inferior follow, spirit, federal courts to may both in letter and in rules and decisions with which we agree. it, respect Our oath demands and our for the Court as an requires institution and for the able and dedicated individuals who serve on it no less. respectful expression But esteem can likewise be manifest of difference-that too craft.’). judicial is the essence of the guru, popularizer, propagandist Milton Friedman: for unrestrained Klein, free-market economics. See Naomi Shock Doctrine: The Rise Disaster 2007). Capitalism (Henry Holt & Co. example, Angeles recently GPS, reported For the Los Times that Crossroads group Rove, slamming conservative co-founded Karl released an ad Montana Senator supporting Agency regulation Jon Tester for However, an Environmental Protection on farm dust. pulled one Montana cable show the ad “because the network determined that false; regulation actually proposed, it was was never and the vote cited in the ad procedural Hamburger Mason, was a measure.”Tom & Melanie Chamber Commerce (Nov. 2011). Getting Early Ads, Start with Attack L.A. Times Yet, speech. is more an endless misleading speech or solution for false more fodder providing and counteraccusations barrage of accusations overwhelm, confuse, voters. and disenchant fact serves to than Furthermore, reality suggest to that millions of dollars it defies ads-put purpose Internet out entities whose television and slick people buy is to what’s place, persuade in the first expertise, and and weight as the fliers of citizen candidates being sold-earry the same It utter nonsense Mary of John and Public. is the letters to the editor enough place ordinary spend citizens or candidates can to think that wisdom, and keep pace and views before the voters experience, their capability corporations of virtually spending the unlimited with spending ability, bigger the electorate. In corporate views before place ads, better; advertising and attack really campaign is and with end, and the become public counts. In the candidates will quantity in elections. bystanders mere Third, being respect to the interests of shareholders not with

¶ they disagree, compelled corporate political speech to fund with which “corporate democracy” actually that participation I do believe course, objecting of shareholder is anything-nnless, accounts for outstanding stock. controlling percentage an insider or owns and agree “corporate democracy” big I cannot will cause business responsibly to exercise their new unlimited multinational influence, won’t, money, It and power speak spend. because Any contrary simply triumph access are at stake. notion to the is hope experience. over Fourth, money in absolutely agree I do not advocating the election of‘independent expenditures” expressly form give corruption appearance cannot rise to or the or defeat candidates cursory corruption. Of course it can. Even the most review of elections, federal, partisan campaigns decades of whether state or only sufficiently demonstrates this. Citizens United held that important governmental preventing corruption quid pro quo is one that is limited to appearance corruption smoke and mirrors. See Citizens corruption. simply This (dissenting opinion). politics, S. Ct. at 961 In the real world of direct to candidates “quid pro quo” both contributions And, independent expenditures loyalty. practical on their behalf is effect, money corrupts, enough teaches that of it experience absolutely. e.g. Caperton, See 556 U.S. 129 S. Ct. 2252. corrupts Fifth, therefore, holding I agree cannot corruption independent expenditures in the form of prevention not a compelling plausible why state interest. There is no reason protect integrity state would not want to of its election process against influence; and undue corruption to do otherwise would render right the fundamental to a meaningless my vote exercise. To knowledge, the First Amendment interpreted has never been to be gloriously rights absolute and isolated from other fundamental protected by Yet, values the Constitution. Citizens United distorts the right beyond recognition. Indeed, I speech am shocked that Supreme Court did not balance the right with the government’s compelling preserving interest in right fundamental to vote elections. time, At the though, persuaded same I am not that

¶131 Montana’s experience corruption “unique” Attorney with is as as the General and posit. this Court Each state has corruption its own horror stories and has battled and election corruption at one time or another. Even a casual examination of the daily newspaper evening or the news proves battling political that corruption ongoing; painting like Bridge, you end, you Golden Gate when reach one start over at the other. It should be noted that Corrupt Montana’s Practices Act was adopted in 1912 at a time when country’s focus was on preventing political corruption, not on protecting corporate influence. Due to intervening changes in the composition and philosophy Supreme Court, that focus has flip-flopped. Teachout, now See Zephyr Historical Roots Citizens United v. FEC: How Anarchists and Academics Accidentally Corporate Created Speech Rights, 5 Harv. L. (2011). Policy & Rev. 163 Corrupt Montana’s Practices Act has become an unconstitutional-artifact, historical-and and it will have to be legislatively revised to changed accommodate a time and a changed A Supreme Court. number of our sister states have modified their laws (see in the wake of Citizens United 72 n. I supra), expect that ¶ Legislature will, should, Montana’s 2013 be tasked doing with same. Lastly, I compelled say am something about corporate

“personhood.” recognize While I firmly that this doctrine is entrenched law, Bellotti, in the see 435 U.S. at 15; 780 n. 98 S. Ct. at 1418 n. 822, 98 but see 435 J., U.S. at S. Ct. at (Rehnquist, dissenting), 1439-40 I find the concept entire offensive. Corporations are artificial creatures such, they enjoy only law. As should powers-not those constitutional rights, legislatively-conferred but powers-that are concomitant with function, their legitimate being limited-liability investment Corporations vehicles for business. are not persons. beings Human are dignity species of our to the inviolable and it is an affront persons, people-human forces legal fiction which courts have created fundamental, with soulless creations rights natural beings-to share still, beings and human share while government. Worse law, they clearly are not bound rights under the many of the same conduct, morality, good decency, to the same codes equally Indeed, truly it is for their sins. they equally are not held accountable natural and hell are reserved penalty that the death ironic persons. this, the central of this Having point all I must return to said my disagreement the views of the Citizens Regardless of

Dissent. spoken. that the Court has majority, the fact remains United Amendment vis-á-vis protections of the First interpreted It has not, Agree decision or Montana’s corporate political speech. with its and enforce the accept and elected officers are bound to judiciary way the same this Court demands ruling-in Court’s rulings, like them or not. obedience to its reasons, analysis I the Court’s in the For these dissent from parse I the Court’s disagree instant case. decision to, message” the next “test United in a fashion so as to “send be view, before, my approach Court. In this Supreme case” swimming is in the same First Amendment disingenuous. Montana state, dictated that its every other and the Court has pool deep corporate political when it comes to expansive waters are land, duty- speech. Citizens United is the law of the this Court is Court, appealed it. this case is to the bound to follow When (see be, summary expect Sup. as I it will reversal on the merits U.S. 16) me in the surprise Ct. R. would not least. my Judge In District Court Sherlock’s well-reasoned opinion, be courageous-though politically unpopular-decision should agree I cannot with this Court’s determination not to do so.

affirmed. Therefore, I respectfully regretfully dissent.

Case Details

Case Name: Western Tradition Partnership, Inc. v. Attorney General

Court Name: Montana Supreme Court

Date Published: Dec 30, 2011

Citation: 271 P.3d 1

Docket Number: DA 11-0081

Court Abbreviation: Mont.