January 7, 2012

Montana Supreme Court Rejects Citizens United

As usual, court decisions may not be as clear as they first appear. Lawyers split hairs so that court rulings change incrementally over time. The 2010 Supreme Court's Citizens United decision at first seemed to protect unlimited corporate campaign donations as the final word on the subject. But two lower courts have now taken aim at narrower slices of the issue.

Toward the end of December, the Second U.S. Circuit Court of Appeals validated a 2006 New York City law against certain political contributions. This tough law limits the amount of money a person with business before the City is allowed to donate to candidates for City office. A lawsuit was brought against the law based on the U.S. Supreme Court's Citizens United ruling. The court dismissed the case. Why? Because they claim that the Citizens United decision applies only to independent corporate expenditures. They argue that the unique characteristics of the New York law places it squarely outside the scope of the Citizens United decision.

At the very end of December, the Montana Supreme Court ruled in favor of the state's Corrupt Practices Act. This Act was originally passed by a citizen's ballot initiative, in 1912 when the copper industry routinely bribed Montana politicians. Does the Citizen's United decision sanction bribery, when it occurs as part of state campaign donations? Perhaps the distinction between bribery and campaign donations has not been totally fleshed out. In Montana, it was also argued that the Citizens United decision only dealt with federal laws and elections. The Montana Supreme Court case dealt with state laws and elections and based its decision on compelling state interest.

It is clear that the vast majority of people do not want a high level of corporate influence and dominance over their government. Non-binding citizen ballot initiatives have passed in Madison, Wisconsin and Boulder, Colorado. A wave of cities have passed various resolutions calling for a Constitutional amendment to ban corporate personhood and to state that money is not speech. These include Richmond and Ft. Bragg, California in March; Jamestown, Colorado in September; Los Angeles, California in December; recently Duluth, Minnesota and New York City this past week. And now two courts have added their voice to this growing chorus.

Surely there are those who would claim that such lower court actions show contempt for the overriding law of the land as interpreted by the United States Supreme Court. But just as surely, there are those who see that Citizens United fundamentally destroys the notion of free and fair elections, and, therefore, its resolution may need to reside outside of usual democratic processes. Two days ago, the American Tradition Partnership announced that it would appeal the Montana decision to the U.S. Supreme Court. So perhaps these lower court decisions will pave the way for the high court to hear arguments and revisit the Citizen's United decision.

Sources: John Caher writes for the New York Law Journal about the New York City ruling, Steven Rosenfeld writes for AlterNet concerning the Montana ruling, MoveToAmend's list of local resolutions to abolish corporate personhood,

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