In a bolt from the blue last Friday, the Montana Supreme Court issued its decision in Western Tradition Partnership, Inc. v. Attorney General, pushing back against the United States Supreme Court’s decision in Citizen United v. Federal Election Comm’n. In Western Tradition Partnership, the court interpreted Citizens United to allow for Montana’s prohibition on corporate contributions for candidates because of Montana’s unique history and susceptibility to corruption from corporate money.
It’s a decision bound to generate a lot of buzz and have a lot of populist appeal. It’s also a ruling that runs completely contrary to the understandings of everyone — except, apparently, five of the seven members of the Montana Supreme Court — about what Citizens United meant and what it did. I’m sure it would shock Justice Stevens to know his concerns about the Supreme Court’s majority opinion in Citizens United were vastly overstated; after all, why all the worry when states can simply opt out by judicial decision??!!
Immediately upon learning about the ruling, I went and downloaded the full copy and started reading.
Despite headlines to the contrary (e.g., “Montana Supreme Court Rules that Citizens United Does Not Apply in Montana“), the Montana Supreme Court’s decision was actually based on its own interpretation and application of the rule of law set down in Citizens United. State supreme courts, as well as other inferior federal courts, do this kind of thing all the time. Whenever the United States Supreme Court sets down a rule, it does so in the context of a specific case. So, courts looking to apply that rule to another case, with a different set of facts, have to determine if there are factual distinctions that would justify a different result, even given the application of the same rule.
The Montana Supreme Court’s reasoning goes something like this (for a more pithy version, check out Marco Brown’s comment here): In Citizens United, the United States Supreme Court determined that the challenged FEC rules should be struck down because there was not a sufficiently compelling interest supporting them. But in Montana — a rural state with a small population, proud history of cheap, grassroots campaigning, susceptibility to large energy and mineral extraction corporations, and a long history of corruption — there is a greater interest that is sufficiently compelling to uphold a ban on corporate contributions. In addition, Montana elects its judges, and the potential for corporate domination of judicial elections is another factor that enhances Montana’s interest vis-a-vis the ones considered and rejected by the United States Supreme Court in Citizens United.
Its an approach to the question that’s theoretically legitimate. Indeed, if one believes that strict scrutiny should not be “strict in theory, but fatal in fact,” there should be some set of facts creating an interest sufficiently compelling that could be served by a narrowly tailored statute — right?
The trouble with the Montana Supreme Court’s approach is that it’s an approach that the United States Supreme Court expressly rejected last year, at least in the context of corporate political speech. From the majority opinion in Citizens United:
We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations (emphasis added).
Despite this unequivocal and unusually clear statement, the Montana Supreme Court persisted in its contention, that the United States Supreme Court wasn’t really talking about government in small-population mineral-rich rural states like Montana.
Western Tradition Partnership will (and should) be quickly reversed on certiorari appeal for the reasons set out by the primary dissenting Justice, James C. Nelson:
Unquestionably, Montana has its own unique history. No doubt Montana also has compelling interests in preserving the integrity of its electoral process and in encouraging the full participation of its electorate. And Montana may indeed be more vulnerable than other states to corporate domination of the political process. But the notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special “no peeing” zone in the First Amendment swimming pool—is simply untenable under Citizens United.
Admittedly, I have never had to write a more frustrating dissent. I agree, at least in principle, with much of the Court’s discussion and with the arguments of the Attorney General. More to the point, I thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the eloquent and, in my view, better-reasoned dissent of Justice Stevens. As a result, I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree.
That said, this case is ultimately not about my agreement or disagreement with the Attorney General or our satisfaction or dissatisfaction with the Citizens United decision. Whether we agree with the Supreme Court’s interpretation of the First Amendment is irrelevant. In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.
Granted, there are some in the legislative and executive branches of government who would call—and, in fact, have called—for Montana to thumb its nose at the federal government, to disregard federal law, and to boldly ignore the Supremacy Clause. Regardless of those views, however, all elected officials in Montana—legislative, executive, and judicial—are sworn to “support, protect and defend the constitution of the United States.” Obviously, this means in accordance with the Supreme Court’s interpretations of the United States Constitution. Thus, when the highest court in the country has spoken clearly on a matter of federal constitutional law, as it did in Citizens United, the highest court in Montana—this Court—is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision. This is the rule of law and is part and parcel of every judge’s and justice’s oath of office to “support, protect and defend the constitution of the United States.” In my view, this Court’s decision today fails to do so.
There are, unquestionably, discomforting realities that accompany unlimited corporate political speech. One can easily understand the frustrations of the majority Justices, feeling as though their state’s political process is being dragged back to 1900 by a panel of conservative United States Supreme Court Justices that simply don’t understand the opportunities for distortion in the political process that accompany unfettered corporate speech in a sparsely populated rural state.
And maybe they’re right. But that doesn’t give them license to ignore the Constitution when the Supreme Court has spoken clearly on the matter. Perhaps the greatest irony of the majority opinion is the fact that it forcefully expresses concern for the potential distorting and corrupting effects that corporate speech might have on the Montana’s elected judiciary. Based on this opinion, it seems as though an elected judiciary’s understandable, though misguided, efforts to avoid Citizens United may themselves be causing the same kind of distortion.