Montana channels Custer in fighting 'Citizens United'

By Scott Forsyth

The Daily Record Newswire

In 1876, in the territory of Montana, Gen. George Custer pursued glory along the Little Bighorn River. He divided his troops and greatly underestimated the strength of his adversary, Sitting Bull. We know the outcome. Ironically, in death Custer achieved his greatest glory.

Montana joined the Union in 1889. One hundred and twenty two years later its highest court may be following in the footsteps of Gen. Custer. The Sitting Bull today is the U.S. Supreme Court. The glory being pursued is getting Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), reversed or narrowed.

You may recall in Citizens United the Supreme Court held that persons, including corporations and unions, may spend unlimited amounts of money advocating for or against the election of a candidate, so long as the spending is "independent" of the candidate.

Along comes Montana. Three small corporations attacked a state law, adopted in 1912 during the Progressive era, which bars a corporation from making "an expenditure in connection with a candidate or a political committee that supports or opposes a candidate."

The same bar on speech at the federal level was at issue in Citizens United. The Supreme Court applied strict scrutiny to invalidate the federal bar.

The court considered and rejected as compelling interests the need to protect to the political process from the distorting effect of large expenditures and the need to prevent corruption or the appearance of corruption. It went so far to state "(n)o sufficient government interest justifies limits on the political speech of nonprofit or for-profit corporations," Id. at 913.

The sweep of Citizens United notwithstanding, the plaintiffs in the Montana case lost. The Montana Supreme Court distinguished the Montana bar from the federal bar on the basis of Montana's "unique" circumstances.

Those circumstances include a history of bribery of public officials and manipulation of government by corporations, in particular the Anaconda Copper Mining Company (controlled for decades by the Rockefellers), a continuing vulnerability to corruption, a sparse population, a dependence on agriculture, "low-dollar, broad-based campaigns," and very low limits on campaign contributions ($160 per donor per race).

Injecting unlimited corporate money in support of or in opposition to a candidate would "minimize the impact of individual citizens" in the political process and might "shut out" them entirely.

Accordingly, Montana had a compelling interest to prohibit all independent expenditures by corporations whereas the federal government did not, American Tradition Partnership, Inc. v. Bullock, 363 Mont. 220, 271 P.3d 1 (2011).

Now, I have visited Montana twice, and yes, what I saw of the state, Yellowstone National Park and Jackson Hole, is different from New York. But is the state as a whole different enough from the other 49 states to enable its highest court not to follow a two-year-old decision of the Supreme Court on point?

Many, including one dissenting judge in Bullock, have criticized the reasoning and tone of Citizens United, but the decision is the law of the land.

The Supreme Court acknowledged protecting the integrity of the political process and preventing corruption were proper concerns of government. "The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and tradition that more speech, not less, is the governing rule," Citizens United v. Federal Election Commission, supra at 911.

The plaintiffs have petitioned the Supreme Court for leave to appeal to it. That petition should be granted. Justices Ginsburg and Breyer have written that the case would give the court the opportunity to reconsider Citizens United, in light of the "huge sums" of money being spent this year "to buy candidates' allegiance."

The plaintiffs counter the court should summarily reverse Bullock, without briefing or oral argument. They assert Montana's circumstances and the sums being spent currently are irrelevant. The holding of Citizens United compels an invalidation of the state bar on corporate expenditures.

Five justices would have to vote for summary reversal. Only four votes are necessary for a regular review.

Various groups have already filed briefs on summary reversal versus regular review versus no review. Most agree campaign spending by outside political advocacy groups is up -- $70 million, a fourfold increase over the same period in 2008, according to the Center for Responsive Politics.

The writers of the briefs differ over who has contributed more to the advocacy groups -- individuals or corporations -- and the impact of the spending on the political process so far.

Watch the track of Bullock. More is at stake than the fate of one state law.


Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or

Published: Thu, May 24, 2012