Courts continue to favor campaign de-regulation

Supporters of campaign regulation continue to face legal setbacks in court in the aftermath of the U.S. Supreme Court’s 2010 Citizens United ruling. At stake are contribution limits, public disclosure and even keeping some elections nonpartisan.

On Sept. 17, the U.S. Ninth Circuit Court of Appeals ruled in a preliminary injunction that Montana’s ban on partisan endorsements of judicial candidates violated the Constitution by restricting free speech. The appellate court cited the Citizens United case.

Montana Attorney General Steve Bullock, who earlier this year unsuccessfully defended Montana’s century-old law banning campaign contributions by corporations before the U.S. Supreme Court, called the appellate court’s ruling “one more case of federal intrusion.”

“Without a truly independent and nonpartisan judiciary, Montanans may no longer continue to trust the integrity of the legal system they rely on to see that justice is done,” he said.

In the meantime, conservative and Republican groups have sued in federal court to change the state’s law limiting campaign contributions. Currently, individual contributions to a candidate are limited to $160 for a state House candidate and $630 for a gubernatorial candidate. The groups claim the limits are unconstitutionally low and interfere with campaign efforts.

The case was brought by the Sanders County Republican Party and has been joined by American Tradition Partnership, formerly Western Tradition Partnership, a conservative group now based in Washington, D.C., that is fighting Montana election officials to withhold the names of its donors.

U.S. District Court Judge Charles Lovell, who will hear the case in Helena, has already issued a number of rulings on campaign regulation in light of the Citizens United decision. He ruled that Montana cannot ban corporations from contributing to political committees that make independent expenditures, and that state laws requiring attack ads disclose voting records and banning knowingly false statements in attack ads are unconstitutional.

Bullock claims the Montana’s campaign laws are needed to prevent political corruption, and he’s not alone. Democratic Sens. Max Baucus and Jon Tester support a constitutional amendment that would restore a state’s ability to regulate campaign contributions. Baucus introduced his amendment in response to the Citizens United ruling.

“Unlimited corporate money unleashed by the Supreme Court’s Citizens United decision is threatening our democracy,” Baucus said during a July hearing on his proposed amendment. “One hundred years ago, the people of Montana responded with one voice loud and clear: ‘We are not for sale.’ Today, we must continue the fight, and the surest way to get to the heart of the Supreme Court’s decision is through a constitutional amendment.”

On Sept. 12, University of Montana Law School professor Anthony Johnstone testified before the Senate Judiciary Committee on the impact of the Citizens United case.

“One hundred years ago, Montanans recognized corruption for what it was, called it as they saw it and did something about it,” Johnstone said. “By initiative, three-quarters of Montana voters, including farmers, ranchers, miners, businessmen, Democrats and Republicans alike, enacted the Corrupt Practices Act of 1912. For a century, that law ensured democratic accountability by requiring individuals — real people — to stand behind campaign money spent on behalf of their corporate interests. This year, the Supreme Court ended this tradition.”

Tester joined in, calling the Citizens United decision “disastrous for our democracy.” He recalled the Montana’s unique election history.

“At the turn of the last century, one of the world’s wealthiest men literally bought himself a seat in the U.S. Senate,” he said. “His name was William Clark. And because of him, Montana passed a law in 1912 limiting the influence of wealthy corporations over our elections.”

In addition to regulating contributions, Baucus and Tester are concerned about public disclosure. That issue suffered a setback on Sept. 18, when the U.S. Court of Appeals for the District of Columbia reversed a lower court ruling that would have led to greater disclosure in campaign advertising.

The case began when Rep. Chris Van Hollen, D-Maryland, sued the Federal Election Commission, claiming the FEC created a “loophole” when it said contributors to ads that did not expressly advocate for or against a candidate could remain anonymous.

U.S. District Court Judge Amy Jackson ruled in March that the FEC overstepped its bounds, even though the commission was responding in 2007 to a U.S. Supreme Court ruling that gave more latitude to nonprofit groups.

In her ruling, Jackson said Congress “spoke plainly” when it passed the McCain-Feingold campaign finance law. The appellate court, however, saw the matter differently, saying, “The statute is anything but clear.”

In an effort to foster more transparency in campaign financing, Baucus and Tester spoke in support of the DISCLOSE Act on July 17.

“Elections belong to the people, and the people have a right to know where all this money is coming from,” Baucus said.

The DISCLOSE Act would require outside groups to publicly disclose all donations over $10,000 and to report to the FEC each time they spend more than $10,000 on political activity. The act would treat unions, corporations and wealthy individuals equally, the senators said.

“The Citizens United decision has already dealt a blow to our democracy,” Tester said. “It’s allowing a handful of billionaires, corporations and secretive groups that represent special interests to try and buy votes.”

Montana voters will have a chance to vote on the campaign financing issue this fall, but considering that their 1912 initiative was ruled unconstitutional by the U.S. Supreme Court this year, the measure may have no political impact.

Initiative 166 would charge state and federal officials in Montana to implement a policy stating that corporations are not “persons.” Personhood is at the heart of the Citizens United case — since corporations are legally defined as “persons,” then they should have the same rights to freedom of speech as all “persons,” the Supreme Court ruled.

Opponents to I-166 sued to stop it from appearing on the November ballot, but the Montana Supreme Court rejected the challenge in a 5-1 ruling on Aug. 10. It’s worth noting, however, that the Montana Supreme Court ruled in favor of the Corrupt Practices Act of 1912 only to see their ruling overturned by the U.S. Supreme Court.