W.Va., other states file brief to U.S. SC to uphold Mont. election law

By Jessica M. Karmasek | May 21, 2012




WASHINGTON (Legal Newsline) - New York Attorney General Eric Schneiderman, on behalf of a coalition of 22 states and the District of Columbia, has filed an amicus brief urging the U.S. Supreme Court to uphold a Montana election law.

In March, a petition for a writ of certiorari was filed by a group of corporations, led by American Tradition Partnership Inc., asking the nation's high court to review a decision by the Montana Supreme Court in favor of the state's Corrupt Practices Act.

The corporations had filed a lawsuit challenging the act, which prohibits corporate contributions in state political campaigns.

In their petition, the corporations argue that the Montana decision was in conflict with both the U.S. Supreme Court's holding that corporations could not be banned from doing core political speech and the Court's reasoning that the independence of such speech eliminated any risk of corrupting candidates.

In turn, they want the Court to overturn Montana's ban and to reverse the ruling by the state Supreme Court that upheld it.

In their 26-page amicus brief that will be filed Monday with the U.S. Supreme Court, the states side with Montana Attorney General Steve Bullock, arguing that the corporations' petition for certiorari should be denied.

Instead, they say the Court should grant certiorari and order a full briefing and oral arguments in the case.

"Petitioners' challenge to Montana's election laws asks this Court to address the permissible limits of state regulation of independent corporate expenditures in state and local candidate elections under the First Amendment. Any decision by this Court here will have consequences for state laws across the country," the states wrote.

"The amici States therefore have a strong interest in the outcome of this case, and a particularly strong interest in opposing petitioners' request that the Court summarily reverse the decision of Montana's Supreme Court, based on the Court's decision two years ago in Citizens United v. FEC."

In 2010, the U.S. Supreme Court held that corporate funding of independent political broadcasts in candidate elections cannot be limited because of the First Amendment.

Citing that decision, a Montana state court declared the CPA unconstitutional, but the state's Supreme Court overturned that decision Dec. 30, 2011.

The Montana Supreme Court's ruling held that the U.S. Supreme Court's decision on corporate campaign spending is not in conflict with the state's own law.

The U.S. Supreme Court's 5-4 ruling in favor of Citizens United stemmed from a dispute over whether the non-profit corporation could air a film critical of current U.S. Secretary of State Hillary Clinton.

The decision infuriated President Barack Obama, who criticized the majority in a State of the Union Address.

Obama said the ruling would "open the floodgates for special interests to spend without limit" in elections.

The ruling overturned a ban on spending in support of or in opposition to a candidate -- i.e. advertising -- but kept intact a law that forbids companies from donating funds directly from their treasuries to candidates.

In light of the U.S. Supreme Court ruling, most states with laws on corporate spending bans stopped enforcing their own restrictions.

"Although the States' laws governing corporate campaign expenditures vary in important respects, they all seek to ensure that such expenditures do not undermine principles of accountability and integrity in state and local elections, while protecting residents' rights to participate in the electoral process," the states wrote.

The states argue that the U.S. Supreme Court should not grant summary reversal on the basis of Citizens United.

They contend the Montana law does not "squarely conflict" with Citizens United, but presents the question of how the principles articulated in the Court's ruling apply in the "quite different" context of state and local elections.

"This case addresses state regulation of corporate spending in state and local elections, in contrast to Citizens United, which analyzed a federal statute governing only federal elections," they wrote.

"To grant summary reversal in this case would deprive the States of the opportunity to be fully heard on the question of how to reconcile the free speech rights recognized in Citizens United with the special problems attendant on protecting the democratic character of state and local elections and institutions."

In a separate statement Monday, Schneiderman said it would be a "grave mistake" for the Court to strike down state campaign finance laws.

Schneiderman's office prepared the brief on behalf of New York, the District of Columbia and the other 21 states.

They include: Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, North Carolina, Rhode Island, Utah, Vermont, Washington and West Virginia.

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