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Under the Supreme Court: High court agrees to consider corporate free speech post-Citizen United

By NICOLE DEBEVEC, United Press International   |   April 8, 2012 at 4:28 AM   |   Comments

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The U.S. Supreme Court agreed to consider taking another bite of the corporate political free speech apple recently, accepting a petition asking justices to summarily overturn a Montana Supreme Court decision petitioners say flies in the face of Citizens United.

In upholding a ban on corporate independent expenditures in state elections, the Montana justices determined that "unlike Citizens United, this case concerns Montana law, Montana elections and it arises from Montana history."

That ruling, the petition said, raises the question for the U.S. Supreme Court to consider: "Whether Montana is bound by the holding of Citizens United, that a ban on corporate independent political expenditures is a violation of the First Amendment, when the ban applies to state, rather than federal, elections."

Citizens United vs. Federal Election Commission is the Supreme Court's 5-4 decision two years ago that effectively ended the restrictions on political contributions from the general funds of corporations and unions.

In asking for a summary judgment, the petition (American Tradition Partnership, et al., vs. Bullock, et al.) by two Montana corporations said the state's top court was wrong in its reasoning about the origin of the flow of the vast sums of money pouring into election campaigns, among other things. The money isn't coming from corporations, but people, the petition argued, and people have been free to spend pretty much as they see fit since 1976.

"The core holding of Citizens United," the petition argued, "is that the independence of independent expenditures means that they pose no cognizable quid-pro-quo corruption risk and no other cognizable governmental interest justifies banning corporate independent expenditures. Thus, the Montana Supreme Court's decision constitutes an attempt to force the reconsideration of Citizens United simply because it disagrees with the opinion.

"That effort should be rejected summarily."

In March, Justices Ruth Bader Ginsburg and Stephen Breyer argued the Montana case would give the Supreme Court a chance to rethink Citizens United.

"A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway," the statement said.

Ginsburg and Breyer said in their statement lower courts were still bound by the 2010 ruling that freed corporations and labor unions to spend as much as they wished on campaigns if they did so independently of candidates. The court put on hold the state court ruling upholding a Montana law similar to the federal law nullified in Citizens United, at least until an appeal is decided.

Most of the money spent in this election cycle is by the so-called "Super PACs," political action committees formed to make independent expenditures promoting or opposing a certain candidate and that have gained great traction and appeal since Citizen United was handed down.

In their petition, the corporations said the Montana decision was in conflict with the Supreme Court's Citizens United holding that corporations could not be banned from doing core political speech and the Court's reasoning that the independence of such speech (through super PACs) eliminated risk of corrupting candidates.

A lower court in Montana relied on Citizens United in declaring the Corrupt Practices Act unconstitutional, but the state's Supreme Court overturned that decision Dec. 30, ruling the U.S. Supreme Court campaign spending decision didn't conflict with the state's law because it was federal, not state.

James Bopp Jr. of The Bopp Law Firm in Terre Haute, Ind., and lead counsel for the corporations, said, "If Montana can ban core political speech because of Montana's unique characteristics, free speech will be seriously harmed."

He said speakers would be silenced because of corrupt activities more than 100 years ago or because Montana candidates typically don't spend much on their campaigns, Legal Newsline said.

In its petition, the corporations said reconsidering Citizens United "based on the facts proposed for limiting core political speech would pose grave constitutional dangers to free speech and association," the petition read. "Consequently, summary reversal is appropriate."

In the filing, Bopp urges the Court to overturn Montana's ban and to reverse the ruling by the state Supreme Court that upheld it, the state's Corrupt Practices Act, which bars corporate contributions in state political campaigns.

Montana Attorney General Steve Bullock expressed mixed feelings about the U.S. Supreme Court's decision to stay the Montana law.

"At the end of the day, the Citizens United decision dealt with a completely different electoral system -- the federal elections and federal laws," he said on MSNBC. "But the vast majority of elections are at the state and local level."

"There are real differences there," he said. "That's what we pushed, and I think that the court would recognize that."

Just last week, Democracy for America said it began a new campaign designed to take apart the Citizens United decision by taking on the ruling through the court system and highlighting Bullock's case before the U.S. Supreme Court.

The advocacy group's campaign calls on attorneys general from across the United States to sign onto an amicus brief -- or friend-of-the-court brief -- documenting the need to overturn the 2010 Supreme Court decision, Democracy for America said in a release.

"Citizens United corrupts our democratic process," said Jim Dean, the organization's chairman. "This campaign, courageously headed by Montana's Attorney General Steve Bullock, demands that the Supreme Court address [its] decision that allowed undisclosed amounts of money to flow into our electoral process. Corporations are not people and ordinary citizens should not be drowned out of democracy."

Adam Skaggs, senior counsel at the Brennan Center for Justice at New York University's School of Law, also argued for the Supreme Court to uphold Montana's ban, saying the matter before it gives the justices a chance to review the "real-world consequences" of Citizens United and "the devastating effect it has had on our democracy," Legal Newsline said.

"The Montana Supreme Court was right to uphold the state's law banning corporate money in elections. The state's experience with corruption, and the flood of super PAC spending today, makes clear that corporate spending in elections can give rise to the appearance and reality of corruption," Skaggs said in a statement.

However, the petitioners said Citizens United hasn't been burdensome.

"Citizens United has not proven unworkable, as evidenced by those who have exercised their liberty under it," the petition said. "Lower courts, except for the [Montana Supreme Court], have uniformly followed this court's holding, and legislatures and government agencies, with few exceptions, have implemented the protections of Citizens United."

Perhaps the most notable objection to the ruling was President Obama's comments during the 2010 State of the Union address, when he remarked, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections."

More recently, Sen. John McCain, R-Ariz., co-sponsor of legislation that limited how much individuals could contribute to political campaigns, predicted "major scandals" would be the result of the more prominent role of super PACS that Citizen United allowed to foster, The Hill reported.

"What the Supreme Court did is a combination of arrogance, naivete and stupidity the likes of which I have never seen," McCain said. "I promise you, there will be huge scandals because there's too much money washing around, too much of it we don't know who's behind it and too much corruption associated with that kind of money."

© 2012 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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