In late May, I was in Montana for a National Institute on Money in State Politics meeting and here’s the mixed news from Big Sky Country: Montana is still feeling the fallout from Citizens United.
Last week, the Ninth Circuit Court of Appeals issued a ruling in Lair v. Bullock reversing a lower court decision that had invalidated many of Montana’s contribution limits. This is good and bad news. The good news is the Ninth Circuit said that the court below applied the wrong legal standard when it invalidated Montana’s contribution limits. But the bad news is the new standard that the appeals court articulated will be even more difficult for the state to meet.
Montana has the nation’s lowest contribution limits making them a long-standing target for those who hate contribution limits. Montana also has one of the lowest state populations with a little over one million people. But they are a civically engaged lot, turning out to vote at higher rates than the national average.
This is not the first trip to the Ninth Circuit for Montana’s contribution limits. This appeals court upheld Montana’s limits before. The reason that Montana’s opponents are getting a second bite at the apple is because of the Supreme Court’s 2010 case Citizens United. As the Lair opinion explains: “Before Citizens United, it was enough to show the state’s interest was simply to prevent the influence contributors of large sums have on politicians, or the appearance of such influence. No longer so.”
The Ninth Circuit remanded to the lower court with instructions that Montana must identify the state interest that justifies its contribution limits. The court also said that only preventing quid pro quo corruption or its appearance would suffice after Citizens United. Thus this case shows the consequences of the Supreme Court’s narrowing the definition of corruption down to a nub — making states jump through higher hoops to justify the reasonable contribution limits they think will fit local circumstances.
Meanwhile, Montana is still trying to improve its campaign finance regime through a new disclosure law. The law known as the Montana Disclose Act passed the legislature with bipartisan support and was signed into law in April by Gov. Steve Bullock (D).
Montana’s disclosure law covers electioneering communications, which are sometimes known as sham issue ads. They earned this moniker because they are structured to look like an ad that supports, or more likely attacks, a candidate while avoiding Buckley’s magic words like “vote for”. In states that only regulate “magic word” political ads, sham issue ads are a way to avoid disclosure and other campaign finance regulations. Montana is trying to put an end to that ruse.
The law was also touted by the Governor as ending so-called dark money. It’s a sad commentary on the current political system that “dark money” has just been added to the Merriam-Webster dictionary. Dark money is money spent in an election where the original source is obscured from view. In many states voters have no idea the size of the dark money flowing through their elections because state disclosure requirements are so porous.
At the federal level we know there has been over $600 million in dark money since Citizens United was decided because the FEC requires disclosure of ad buys but not of the original donors. This might be why Transparency International ranked the United States so low on its corruption perceptions index.
But in some of the 50 states, the disclosure is even worse than at the federal level because the ad buys themselves aren’t captured by the law, especially if the state is a “magic words” state. (In case you were wondering, “magic words” are no longer constitutionally required by the Supreme Court after a 2003 case called McConnell.)
The new Montana law takes steps in the right direction to curb the dark money problem. But the new law is not perfect and will take a legislative rewrite or some broad implementing regulations to reveal all underlying donors buying political ads in the state.
Fortunately for Montana, Citizens United was very pro-disclosure. The Supreme Court made clear that informing the voter was an important enough reason to justify the state to require disclosure of campaign spending on advertisements. So while Montana may have a difficult row to hoe when it comes to justifying its contribution limits under the new high standard, it should have a comparative cake walk in justifying its new disclosure rules with the voter-informational interest.
But herein also lies the cruel irony of the Roberts Supreme Court’s approach to campaign finance: citizens will be able to see the massive amounts of cash spent in elections; but they are hampered at every turn when they try to do anything about it. This is true not just for Montanans, but for citizens in every state in the union.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice