The Wall Street Journal
Montana Is Seeking to Uphold Campaign-Funding Curbs Jeopardized by a Supreme Court Ruling
After the Supreme Court freed corporations and unions to pay for advertisements supporting or attacking candidates for federal office, many states concluded that their own restrictions on such electioneering were doomed as well.
Not Montana. Sued by three corporations seeking to influence the Nov. 2 legislative election, Attorney General Steve Bullock is arguing that Montana's Corrupt Practices Act of 1912 remains constitutional—even though the Supreme Court scotched similar provisions of the 2002 federal Bipartisan Campaign Reform Act, known after its sponsors as McCain-Feingold.
A state judge in Helena is expected to rule this week whether to block the law, setting the stage for appeals from top attorneys that could reach the U.S. Supreme Court.
The case provides a glimpse of how the Supreme Court's January decision in the Citizens United v. Federal Election Commission case is playing out in states, some of which have a history of curtailing corporate and union activity in elections.
The majority opinion by Justice Anthony Kennedy found that "independent expenditures" to buy candidate ads, "including those made by corporations, do not give rise to corruption or the appearance of corruption." To the contrary, "corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies" in candidates' views," the ruling said.
At least nine of the 24 states with campaign laws threatened by Citizens United have repealed or suspended them, according to Jennie Bowser of the National Conference of State Legislatures. Only Montana is known to be defending its law, she said.
"Montana has a record, a history and a present that's different from what the Supreme Court had in front of it," says Mr. Bullock, a Democrat elected in 2008. "In Montana, we have a record that shows those expenditures did corrupt and do corrupt."
Under Montana state law, as under the now-invalid McCain-Feingold provisions, corporations cannot use general funds for electioneering, but may establish political action committees to collect donations for campaign ads.
Mr. Bullock's opponents say nothing Montana asserts can overcome the thrust of Citizens United, which views corporate electioneering as good for democracy.
"Free speech is free speech," says Donald Ferguson, executive director of Western Tradition Partnership, a pro-business lobbying group leading the suit to void Montana's Corrupt Practices Act.
He compares Montana regulations to state poll taxes, which the Supreme Court found unconstitutional in 1966. Montana's position, Mr. Ferguson says, is like saying poll taxes are no burden because "you just have to pay a tax and then you can vote."
Montana has restricted corporate electioneering since 1904, when the state Supreme Court, siding with shareholders and top law firms, ruled that mining executives misappropriated corporate funds by spending them "for strictly political purposes." Back then, Montana was a battleground between its small resident population and out-of-state corporate barons who controlled its natural resources. With mining and railroad interests spending millions to elect pliant state legislators, Montana voters fought back with their first-ever ballot initiative, passing the Corrupt Practices Act by a 3-1 margin.
Mr. Bullock says some of the Supreme Court's reasons for overruling the federal law don't apply to his state. Justice Kennedy's opinion found that Federal Election Commission requirements, numbering nearly 2,000 pages, were so "onerous" that many corporations would rather not make political expenditures than risk a fine.
"In Montana," Mr. Bullock says, "it takes two minutes to register as a political committee and our commissioner of political practices will help you fill out the form." Instead of the FEC bureaucracy, "the whole commissioner's office is in a converted house and it's essentially one room."
Western Tradition disagrees about the relevance of Montana's history. "The situation in 1912 is not the situation today," says Mr. Ferguson.
Western Tradition, which is incorporated in Colorado and lists a Washington, D.C., address on its website, has brought on additional plaintiffs with clearer Montana ties. One is Champion Painting Inc. in Bozeman. Its owner, Kenneth Champion, ran unsuccessfully for state legislature in 2008 and now heads a local tea-party group.
He says he wants to spend his company's money to oust city officials who joined an international organization of local governments seeking to meet sustainability goals backed by the United Nations. "You get a lot of people out of California who retire here" and "try to implement the same agenda they had back where they came from," he said.
Although no law restricts his personal political spending, Mr. Champion said he believes ads attacking or supporting candidates would have more credibility if sponsored by a small business like Champion Painting.
A third plaintiff is the nonprofit Montana Shooting Sports Association, which President Gary Marbut says he incorporated in 1990 primarily "to get the right candidates elected." At the moment, Mr. Marbut says, the group can't use its regular dues for electioneering, but must collect donations through its political action committee.
While he wants more freedom for his group to spend in elections, Mr. Marbut rejects Western Tradition's view that all corporations should hold the same First Amendment rights as individuals. "There's a difference between groups like us and the Exxons of the world," he says. "We don't want to recreate the Copper Kings era, when they owned Montana and we were their servants."
Not Montana. Sued by three corporations seeking to influence the Nov. 2 legislative election, Attorney General Steve Bullock is arguing that Montana's Corrupt Practices Act of 1912 remains constitutional—even though the Supreme Court scotched similar provisions of the 2002 federal Bipartisan Campaign Reform Act, known after its sponsors as McCain-Feingold.
A state judge in Helena is expected to rule this week whether to block the law, setting the stage for appeals from top attorneys that could reach the U.S. Supreme Court.
The case provides a glimpse of how the Supreme Court's January decision in the Citizens United v. Federal Election Commission case is playing out in states, some of which have a history of curtailing corporate and union activity in elections.
The majority opinion by Justice Anthony Kennedy found that "independent expenditures" to buy candidate ads, "including those made by corporations, do not give rise to corruption or the appearance of corruption." To the contrary, "corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies" in candidates' views," the ruling said.
At least nine of the 24 states with campaign laws threatened by Citizens United have repealed or suspended them, according to Jennie Bowser of the National Conference of State Legislatures. Only Montana is known to be defending its law, she said.
"Montana has a record, a history and a present that's different from what the Supreme Court had in front of it," says Mr. Bullock, a Democrat elected in 2008. "In Montana, we have a record that shows those expenditures did corrupt and do corrupt."
Under Montana state law, as under the now-invalid McCain-Feingold provisions, corporations cannot use general funds for electioneering, but may establish political action committees to collect donations for campaign ads.
Mr. Bullock's opponents say nothing Montana asserts can overcome the thrust of Citizens United, which views corporate electioneering as good for democracy.
"Free speech is free speech," says Donald Ferguson, executive director of Western Tradition Partnership, a pro-business lobbying group leading the suit to void Montana's Corrupt Practices Act.
He compares Montana regulations to state poll taxes, which the Supreme Court found unconstitutional in 1966. Montana's position, Mr. Ferguson says, is like saying poll taxes are no burden because "you just have to pay a tax and then you can vote."
Montana has restricted corporate electioneering since 1904, when the state Supreme Court, siding with shareholders and top law firms, ruled that mining executives misappropriated corporate funds by spending them "for strictly political purposes." Back then, Montana was a battleground between its small resident population and out-of-state corporate barons who controlled its natural resources. With mining and railroad interests spending millions to elect pliant state legislators, Montana voters fought back with their first-ever ballot initiative, passing the Corrupt Practices Act by a 3-1 margin.
Mr. Bullock says some of the Supreme Court's reasons for overruling the federal law don't apply to his state. Justice Kennedy's opinion found that Federal Election Commission requirements, numbering nearly 2,000 pages, were so "onerous" that many corporations would rather not make political expenditures than risk a fine.
"In Montana," Mr. Bullock says, "it takes two minutes to register as a political committee and our commissioner of political practices will help you fill out the form." Instead of the FEC bureaucracy, "the whole commissioner's office is in a converted house and it's essentially one room."
Western Tradition disagrees about the relevance of Montana's history. "The situation in 1912 is not the situation today," says Mr. Ferguson.
Western Tradition, which is incorporated in Colorado and lists a Washington, D.C., address on its website, has brought on additional plaintiffs with clearer Montana ties. One is Champion Painting Inc. in Bozeman. Its owner, Kenneth Champion, ran unsuccessfully for state legislature in 2008 and now heads a local tea-party group.
He says he wants to spend his company's money to oust city officials who joined an international organization of local governments seeking to meet sustainability goals backed by the United Nations. "You get a lot of people out of California who retire here" and "try to implement the same agenda they had back where they came from," he said.
Although no law restricts his personal political spending, Mr. Champion said he believes ads attacking or supporting candidates would have more credibility if sponsored by a small business like Champion Painting.
A third plaintiff is the nonprofit Montana Shooting Sports Association, which President Gary Marbut says he incorporated in 1990 primarily "to get the right candidates elected." At the moment, Mr. Marbut says, the group can't use its regular dues for electioneering, but must collect donations through its political action committee.
While he wants more freedom for his group to spend in elections, Mr. Marbut rejects Western Tradition's view that all corporations should hold the same First Amendment rights as individuals. "There's a difference between groups like us and the Exxons of the world," he says. "We don't want to recreate the Copper Kings era, when they owned Montana and we were their servants."
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