Charge! The Montana Supreme Court takes on Citizens United

Half a league, half a league,
  Half a league onward,
All in the valley of Death
  Rode the six hundred.
‘Forward, the Light Brigade!
Charge for the guns’ he said:
Into the valley of Death
  Rode the six hundred.
                               – Tennyson

Well, you have to give the Montana Supreme Court majority credit for audacity, if not wisdom and respect for the hierarchical nature of our court system.

Yesterday, in Western Tradition Partnership Inc. v. Attorney General, the Montana Supreme Court (we’ll call it the “MSC,” to avoid confusion with a higher court federal court using a similar name) upheld Montana’s ban on corporate independent political expenditures, in the face of the United State’s Supreme Court’s ruling in Citizen United v. Federal Election Commission

There is so much wrong with this opinion one hardly knows where to begin. Perhaps with the MSC’s taking time to point out that the evil plaintiffs at Western Tradition Partnership (“WTP”) are engaged in other lawsuits challenging the constitutionality of other portions of Montana’s law, which the MSC seems to think makes their whole operation suspect. But that’s just a small thing, really, that sets the tone for the colossal mishap that follows.

Just as Earl Lucan, the commander of the Light Brigade at the Battle of Balaclava, misunderstood the objective of his overall commander, Lord Raglan, the MSC seems to have misunderstood the objective of the Supreme Court’s opinion in Citizens United. The MSC majority states early on that “Citizens United was case decided on its facts.” But as the dissent by Justice James Nelson notes:

The Supreme Court could not have been more clear in Citizens United: corporations have broad rights under the First Amendment to the United States Constitution to engage in political speech, and corporations cannot be prohibited from using general treasury funds for this purpose based on antidistortion, anticorruption, or shareholder protected interests. The language of the Citizens United majority opinion is remarkably sweeping and leaves virtually no conceivable basis for muzzling or otherwise restricting corporate political speech in the form of independent expenditures.

… [E]very one of the Attorney General’s arguments – and this Court’s rationale for adopting those arguments – was argued, considered, and then flatly rejected by the Supreme Court.

The MSC seems to think that Citizen’s United was a mere, as-applied, fact specific challenge, similar to Federal Election Commission v. Massachusetts Citizens for Life, wherein the Court held that a small, volunteer non-profit literally raising money through bake sales could not be subject to the ban on corporate expenditures.

In fact, Citizens United’s holding that independent expenditures are not “corrupting” is not a statement of fact, but a statement of law. In this respect, it is similar to contractual doctrines that imply consent where consent is truly a fiction; or criminal doctrines that throw out confessions that were freely given, on the grounds that they were not probative because the accused was not properly “Mirandized.” The MSC Majority asks “[d]oes a state have to repeal or invalidate its murder prohibition if the homicide rate declines?” It modestly suggest that there is some doubt in the answer to its own question: “we think not.” A better question might have been, “does a state have to abandon its ban on handguns if the homicide rate declines?” The answer to that question, I think we would all understand, is a clear “yes.” District of Columbia v. Heller; McDonald v. Chicago. The reason is rather obvious: there is no constitutional right to murder another; there are constitutional rights to keep and bear arms, and to free speech.

There are things the government cannot do to fight crime. It cannot engage in warrantless searches and seizures; it cannot force an accused to testify against himself; it cannot ban handguns. There are things the government cannot do to improve the efficiency of the civil courts: it cannot abolish juries, or the right to cross examination. There are constraints on the power of the federal government to try to improve educational outcomes: see United States v. Lopez.

The First Amendment is a constraint on what government can do in the name of “preventing corruption,” or “equalizing elections.” Citizens United, like Buckley v. Valeo, like First National Bank of Boston v. Bellotti, like Wisconsin Right to Life v. Federal Election Commission – indeed, like virtually all Supreme Court decisions striking down campaign finance laws – is about setting limits on government power that are consistent with the First Amendment. 

In any event, given this misunderstanding of the Supreme Court’s order in Citizens United – although unlike the poor Earl Lucan, here the MSC’s misunderstanding may have been intentional – the MSC has charged into the Valley of Death.

Over at the Volokh Conspiracy, our friend Professor Volokh has neatly reprinted what probably are the key passages from the majority and the dissent, so we won’t reprint them all here, except this quote from the dissent, which sums things up pretty well:

The Supreme Court in Citizens United … rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute….

Professor Volokh predicts that the Supreme Court will agree to hear the case, and then reverse. We think even more likely is a summary reversal without argument.

“O the wild charge they made.”

The Center for Competitive Politics is now the Institute for Free Speech.