Mont. High Court Says Citizens United Does Not Trump State’s Corrupt Practices Act

by Jeremy Leaming

The Montana Supreme Court recently upheld the state’s century-old prohibition against corporate financing of elections, providing a striking rebuke to the U.S. Supreme Court’s 2010 opinion in Citizens United v. FEC.

In Citizens United the high court ruled 5-4 that corporations have First Amendment rights equivalent to persons, and therefore can funnel their expenditures into politics. Citizens United overruled long time federal regulations of corporate campaign financing.

Montana’s high court, with two members dissenting in Western Tradition Partnership, Inc. v. State of Montana, said the Citizens United opinion does not nullify the state’s Corrupt Practices Act, enacted in 1912. The Montana campaign finance regulation was invalidated by a lower court state judge, citing Citizens United.

Writing for the Montana Supreme Court majority, Chief Justice Mike McGrath said the state had never lost a “compelling interest to enact” the law. “At the time,” McGrath wrote, “the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests.”

The chief justice continued that today concerns of “corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly, Montana has unique and compelling interests to protect through preservation of this statute.”

Jeff Clements, general counsel of Free Speech for People, a public interest group devoted to overturning Citizens United, lauded the Montana high court’s opinion, writing, “Corporations are not people. The Framers understood that. We are proud to stand today with the State of Montana to vindicate the Framers’ intent and to defend our democracy.”

On his blog, Corporations Are Not People, Clements also noted that all the Montana justices, including those in the dissent, showed “utter contempt” for the “notion of ‘corporate rights,’” as set out in Citizens United. Clements, an author of an ACS Issue Brief examining Citizens United, cited a portion of Justice James C. Nelson’s dissent.  

Nelson, in part, wrote that the concept of corporate personhood struck him as “offensive.” He continued, “Corporations are artificial creatures of law. As such, they should enjoy only those powers – not constitutional rights, but legislatively-conferred powers – that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creations of government.”

Donald Ferguson, executive director of the American Tradition Partnership, one of the groups seeking to overturn the state’s Corrupt Practices Act, issued a statement, The Great Falls Tribune reports, claiming corporations do have free speech rights and that his group was “reviewing our legal options.”

Clements, in an interview with ACSblog, details the effort underway by Free Speech for People to advance a constitutional amendment overturning Citizens United. Free Speech for People also lodged an amicus brief in the Montana case arguing in favor of Montana’s campaign finance regulation.