It may be surprising that the biggest blow to corporations in 2011 didn’t come from Wall Street protestors. Late last month Montana’s Supreme Court took a swing at corporate spending in elections holding, in spite of the decision in Citizens United v. Federal Election Committee, that a 100-year-old law banning corporate spending was valid. In doing so, the court held that the lower court’s reading of Citizens United was erroneous. The Court in Citizens United said, “Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction ‘furthers a compelling interest and is narrowly tailored to achieve that interest.’”
So what exactly should be considered a “compelling interest” for bans on political spending? The Supreme Court of Montana answers bluntly that they have met the standard of review set out in Citizens United. In assessing Chief Justice McGrath explains Montana’s long standing fight against corporate spending.Montana Attorney General Steve Bullock (also a 2012 gubernatorial candidate) in presenting the case brought forward two affidavits from former house representatives who contended that, “Montana, with its small population, enjoys political campaigns marked by person-to-person contact and a low cost of advertising as compared to other states.” Mike Cooney, former Democratic representative, stated that he ran his first legislative campaign on $750. It is not hard to see how a large influx of corporate spending could completely change the make up of Montana elections. The Court continued to say that Montana has a clear interest in protecting the participation of the electorate, and that corporate spending might diminish participation.
So what exactly did the Supreme Court say in Citizens United? The only exception citied in the Citizens United opinion is about foreign investment. The Court says that a law restricting foreign contributions specifically may be constitutional because foreign expenditure in elections would rise to the level of a “compelling government interest”. Although we may not know exactly what “a compelling government interest” is, we do know what it is not. As mentioned by Judge Baker’s dissent the Court in Citizens United said that there is “no sufficient governmental interest that justifies limits on the political speech of nonprofit or for-profit corporations.” It seems that the Court has taken a hard-line stance in favor of corporate spending and against the kinds of limitations Montana wishes to impose. Montana’s Judge Nelson says it best in his dissent, “The Supreme Court in Citizens United (and in White) rejected several asserted governmental interests; and this Court has now come along, retrieved those interests dusted them off, slapped a “Made in Montana” sticker on them and held them up as grounds for sustaining a patently unconstitutional state statute.”
The Montana courts are basically saying, “We heard you Washington, and we just plain don’t like what you said.” While sensible people can argue on whether the Court’s decision was right and proper, it does get one thinking about the implications. For now, it seems that Montana law will rule until an inevitable standoff at the Supreme Court level. The question then becomes: how will the Supreme Court handle a rehashing of Citizens United? Will they brush aside the case, or take the time to reexamine and reiterate corporate spending rights that are still hotly debated in the court room as well as in public opinion? The Montana decision gives more questions than answers, but does manage breathe new life into the growing contention against corporate involvement in elections.
Patrick Genova is a first-year student at William and Mary Law.