Today, was a first for the Montana Law Review: the New York Times cited Professor Howell’s article on Western Tradition Partnership in an editorial piece regarding the Montana Supreme Court’s recent decision.
The New York Time’s editorial can be read here and Professor Howell’s article can be read here.
Today, the Montana Supreme Court handed down Western Tradition Partnership v. Attorney General, 2011 MT 328. Get the 80-page opinion (including dissents) here.
Question Presented: Does the portion of Montana’s Corrupt Practices Act which prohibits a corporation from making “a contribution or an expenditure in connection with a candidate” survive the United States Supreme Court decision Citizens United v. FEC, 130 S.Ct. 876 (2010)?
Answer: Yes. The Court upheld the State’s ban on corporate expenditures, reasoning that Montana had a compelling interest to have the law in force.
Chief Justice McGrath wrote the majority opinion which Justices Rice, Cotter, Wheat and Morris joined. Justices Nelson and Baker dissented.
Majority Opinion
The Court began with history and noted that Montana had a compelling interest in preventing corporate corruption in state politics when it passed the original act in 1912. ”Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte” Chief Justice Mike McGrath wrote about the famed Copper Kings, “between mining and industrial enterprises controlled by foreign trusts or corporation.” The Court then reasoned that Montana, with its history of small money campaigns, would be particularly affected by the entrance of corporate dollars which would overpower donations made by individual Montanans.
With these compelling interests in mind, the Court framed the dispositive questions as “when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did.” The Court concluded that the State still retained its interest:
Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government.
The Court ruled that Montana had a compelling interest to prohibit corporate expenditures. Justices Rice, Morris, Cotter, and Wheat joined the majority.
Justices Baker and Nelson Dissented
Justice Baker began by stating that she believed that Citizen United foreclosed Montana’s law as unconstitutional. ”In my view,” she wrote, “the State of Montana made no more compelling a case than the painstakingly presented 90-page dissenting opinion of Justice Stevens and emphatically rejected by the majority in Citizens United.” Justice Baker went on to say that instead of a “vain attempt” to save Montana’s law, she would interpret the law to make corporate expenditures more transparent by allowing Montana to require heightened disclosure requirements.
Justice Nelson dissented, writing that the Citizens United was the “law of the land” which the Montana Supreme Court was bound to abide by. Justice Nelson made clear, however, that he did not personally agree with the Supreme Court’s reasoning in Citizens United. ”Admittedly,” Justice Nelson wrote, “I have never had to write a more frustrating dissent.” Justice Nelson wrote:
Has the State of Montana identified a compelling state interest, not already rejected by the Supreme Court, that would justify the outright ban on corporate expenditures for political speech effected by § 13-35-227(1), MCA? Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.
Justice Nelson concluded by stating that he would not be surprised if the United States Supreme Court reversed the ruling summarily on appeal.
The Montana Law Review will continue to track the developments of Western Tradition Partnership as it is likely to be appealed to the Supreme Court. Below are a few interesting links.
Read a recent article written by Montana School of Law Professor Howell on Montana’s history of corporate corruption.
Missoulian Article by Charles S. Johnson
This Wednesday, December 7, the United States Supreme Court will hear oral argument in PPL Montana, LLC v. Montana. At stake is $41,000,000. The legal issue is what “navigable” means for the purposes of determining who owns certain riverbeds. If the Madison, Clark Fork, and Missouri rivers are “navigable” at the sites of nine hydroelectric dams owned by PPL, the State of Montana owns title to the riverbeds, and PPL owes the State millions in back rent for the use of the riverbeds from 2000 through 2007. But, if the rivers are not “navigable” at the sites of PPL’s dams, PPL legally owns the riverbeds under those dams and, therefore, does not owe back rent.
The case is being argued by Paul Clement (PPL) and Gregory Garre (Montana) both former United States Solicitor Generals. Deputy Solicitor General Edwin Kneedler is arguing on behalf of the United States in support of PPL. University of Montana Assistant Professor of Law Anthony Johnstone will be at counsel table for Montana.
PPL Montana has significant consequences for states, and it is consequently generating quite a bit of buzz going into oral arguments. Here’s a rundown of online resources and discussions of the case.
The basics:
Robert Barnes’ Washington Post article on the case is a great starting point.
The American Bar Association summarizes the questions presented and links to the briefs.
The Montana Supreme Court’s original order and state appellate briefs can be found at its website.
Finally, may we suggest this short from our Fall 2010 Issue?
Analysis:
Columbia University’s Thomas Merrill previews the arguments on SCOTUSblog, splits the issues and predicts a remand.
Professor Robert Adler of the University of Utah looks at the case from an enviromental standpoint at the Center for Progressive Reform’s blog.
Found an interesting/enlightening/infuriating article or discussion on PPL Montana? Let us know.
READ THE FULL ARTICLE ONLINE
PDF VERSION
This article discusses the case, Western Tradition Partnership v. Attorney General, currently before the Montana Supreme Court. Western Tradition concerns the viability of Montana’s century-old ban on independent corporate expenditures in campaigns for elected office, which a lower court held unconstitutional in light of the U.S. Supreme Court decision in Citizens United v. FEC. The Montana Attorney General appealed. This article argues that, while the Montana Supreme Court will have trouble invalidating the statute’s ban on corporate expenditures in political elections, the Court should uphold the ban on expenditures made in judicial elections.
This article first traces the history of Montana’s ban on corporate campaign expenditures by examining the corrupt practices of Montana’s copper kings at the turn of the twentieth century, particularly William A. Clark and F. Augustus Heinze. That corruption directly led to the passage, by citizen initiative, of Montana’s Corrupt Practices Act of 1912.
Within that historical framework, this article next examines the conflict between the U.S. Supreme Court’s recent decisions in Caperton v. A.T. Massey Coal Co. and Citizens United. The article then argues that Court’s decision in Caperton, which concerned independent expenditures in a judicial election, and the Court’s subsequent failure to distinguish between judicial and political elections in Citizens United, provides an opportunity for the Montana Supreme Court to create a judicial exception to Citizens United that would continue to prohibit corporate campaign expenditures to candidates for judicial office.
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