Montana Department of Justice
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March 2, 2012

Clean and Fair Elections

[intro-paragraph]In November of 1912, Montana voters passed the Corrupt Practices Act by citizens’ initiative. The law prohibits corporations from using their general treasury funds to influence Montana political elections.[/intro-paragraph]

The language of the law has never been changed and for nearly 100 years the legitimacy of the Corrupt Practices Act has not been disputed.

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On June 25, 2012, in a divided 5-4 ruling, the U.S. Supreme Court reversed the Montana Supreme Court and struck down Montana’s citizen-passed ban on direct corporate expenditures.

Attorney General Steve Bullock had been the only attorney general in the country fighting to keep the ban in Montana in place. Here is his statement on the high court’s decision:

“It is a sad day for our democracy and for those of us who still want to believe that the United States Supreme Court is anything more than another political body in Washington, D.C.

“I am very disappointed in what the U.S. Supreme Court’s decision means for state and local elections in Montana – and for our entire nation. One hundred years ago, Montanans passed an initiative to protect democracy, to give everyday people a voice that would no longer be silenced by a sea of corporate money. Their wisdom and the Corrupt Practices Act of 1912 have served Montana well for over a century, and could have provided the Court with the opportunity to revisit some of the fundamental fallacies underlying the Citizens United decision.

“I am proud to have led this fight for Montana and honored that 22 other states and Sens. Sheldon Whitehouse (D-R.I.) and John McCain (R-Ariz.) stood shoulder to shoulder with Montana. Despite this disappointing decision, the last word has not been spoken on the issue of how we preserve a viable democracy in which everyday people have a meaningful voice. History will show that it was Montanans and the Montana Supreme Court that understood the heart of this issue and stood on the side of ‘We the people.’”

While five of the Court’s justices voted to reverse the Montana Supreme Court’s decision, four justices – led by Justice Breyer – voted to deny ATP’s petition to rehear the case and instead uphold the Montana court’s decision. In the dissent, Justice Breyer wrote:

“Montana’s experience, like considerable ex¬perience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

Background of the Case

In January of 2010, the U.S. Supreme Court ruled in the landmark Citizens United case that the federal ban on corporate independent expenditures in the run-up to federal elections violates the free speech protections guaranteed U.S. citizens in the Constitution. The decision applied only to federal elections and did not address the separate federal prohibition against corporate or union monies flowing directly to a candidate. Those federal prohibitions still stand.

[box title=”Documents from the Case”]

Montana Supreme Court Opinion December 2011

U.S. Supreme Court Stay Order February 2012

U.S. Supreme Court:  Montana’s Brief in Opposition to Petition for Writ of Certiorari May 2012

U.S. Supreme Court: Brief of 22 Other States in Favor of Montana’s Position

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Nevertheless, Citizens United paved the way for what have become known as “SuperPACs,” or political action committees that can take unlimited amounts of corporate or union money and spend that money to influence the outcome of elections. The decision also created uncertainty about the many state restrictions on corporate spending in state elections, including Montana’s Corrupt Practices Act.

Later that year, Western Tradition Partnership, a 501 (c)(4) corporation based in Colorado, and two other plaintiffs, sued the state of Montana arguing that the Corrupt Practices Act violated the U.S. Constitution, in light of the U.S. Supreme Court’s interpretation in Citizens United.

Montana Attorney General Steve Bullock defended Montana in the case.

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Bullock argued that Montana’s law – passed by citizens and born in a time when corporate money dominated the state’s political landscape – should stand. For one, he argued, the Citizen’s United case does not automatically allow unfettered corporate spending in elections. Rather, it creates a standard of compelling state interest in which there can be exceptions to limitless political spending. Montana’s history – dominated for generations by the power and wealth of the Amalgamated Copper Co. (later the Anaconda Co.) – proves that Montanans indeed had a “compelling state interest” in leveling the political playing field between corporation and citizen.

A district court disagreed and stuck down the Montana provisions that required corporations to speak through separate Political Action Committees. The court allowed, for the first time since 1912,  independent expenditures influencing Montana elections to be made directly from corporate treasuries. Bullock appealed to the Montana Supreme Court, arguing the case himself on Sept. 21, 2011.

On December 30, 2011, the high court reversed the district court’s decision, restoring the Corrupt Practices Act and leaving Montana as the only state in the union that still has an enforced prohibition on expenditures made directly from the corporate treasury to influence political  elections.

Western Tradition Partnership, which has since changed its name to American Tradition Partnership and moved its headquarters to Washington, D.C., appealed the case to the U.S. Supreme Court.

The U.S. Supreme Court issued an order on Feb. 17, 2012 providing that Montana’s ban on independent corporate expenditures — contained in the Corrupt Practices Act — is unenforceable pending further ruling by the U.S. Supreme Court.

[box title=”Press Releases and Ongoing Coverage of the Case”]

Department of Justice Press Releases

Dec. 31, 2011
Lee Montana Newspapers
KXLH
KFBB

Jan. 3, 2012
Rolling Stone magazine

Jan. 4, 2012
Los Angeles Times
Wall Street Journal
Huffington Post
Helena Independent Record
National Law Journal
Slate
Daily Kos

Jan. 5, 2012
Lee Montana Newspapers
Billings Gazette
Huffington Post
Missoula Independent
Havre Daily News

Jan. 6, 2012
Lee Montana Newspapers
David Sirota column

Jan. 7, 2012
Policy Shop

Jan. 12, 2012
American Independent Business Alliance

Jan. 13, 2012
Legal Newsline
Legal Times

Jan. 23, 2012
Lee Montana Newspapers

Feb. 10, 2012
Associated Press

Feb. 15, 2012
Lee Montana Newspapers

Feb. 17, 2012
Lee Montana Newspapers
Associated Press
Huffington Post

March 27, 2012
Associated Press
SCOTUSblog
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