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American Tradition Partnership v. Bullock

The Brennan Center and other amici defended Montana’s ban on corporate independent expenditures, arguing that the State presented a factual record of the corrupting influence of corporate spending in Montana elections.

Published: May 4, 2012

Summary of the Case: Adop­ted in 1912, Montana’s Corrupt Prac­tices Act prohib­its corpor­a­tions from spend­ing general treas­ury funds to influ­ence the outcome of state elec­tions. In essence, the law is a state-level equi­val­ent of the federal law struck down by Citizens United v. FEC.  After Citizens United, a group of Montana corpor­a­tions chal­lenged the law.

Defend­ing the law in the Montana Supreme Court, the State took issue with the assump­tion in Citizens United that inde­pend­ent expendit­ures, unlike contri­bu­tions to candid­ates, cannot corrupt elec­ted offi­cials. Montana argued that the Supreme Court struck down the federal ban on corpor­ate inde­pend­ent expendit­ures because of a lack of a factual record that inde­pend­ent spend­ing leads to corrup­tion at the federal level. But by detail­ing Montana’s “unique history of corpor­ate polit­ical corrup­tion” caused by nine­teenth century mining interests, the state distin­guished its law from the federal equi­val­ent and defen­ded its consti­tu­tion­al­ity. By a 5–2 vote, the Montana Supreme Court agreed with the State’s argu­ment, noting that Montana voters adop­ted the Corrupt Prac­tices Act because of the corrupt­ing influ­ence of corpor­ate spend­ing, and conclud­ing that the threat of corrup­tion remains sali­ent:

Issues 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.

The chal­lengers appealed the decision to the U.S. Supreme Court, which gran­ted a stay of the Montana court’s decision and invited brief­ing on whether or not the Supreme Court should hear the case.

In conjunc­tion with the stay order, Justices Gins­berg and Breyer issued an unusual state­ment urging the Court to review the Montana case, and to reex­am­ine Citizens United “in light of the huge sums currently deployed to buy candid­ates’ alle­gi­ance.”  The Bren­nan Center urged the Court to let the Montana Supreme Court’s decision stand, and to use the case as “an oppor­tun­ity to recon­sider the real-world consequences of Citizens United, and the devast­at­ing effect it has had on our demo­cracy.”


Summary of Bren­nan Center’s Amicus Argu­ment: The Bren­nan Center joined consti­tu­tional and elec­tion law profess­ors in an amici curiae brief urging the Supreme Court to deny certi­or­ari and let Montana’s Corrupt Prac­tices Act stand. The brief argues that if the Supreme Court agrees to hear the case, however, it should grant plen­ary review and address its prior ruling in Citizens United.  The brief urges the Court to clarify that lower courts in other cases have erred in inter­pret­ing Citizens United to mean that courts should not exam­ine a factual record in determ­in­ing whether or not inde­pend­ent expendit­ures create the real­ity or appear­ance of corrup­tion. The Bren­nan Center and other amici argue that Montana, unlike the respond­ents in Citizens United, presen­ted a strong factual record that Montana citizens adop­ted the Corrupt Prac­tices Act in order to combat corpor­ate corrup­tion in Montana state govern­ment at the begin­ning of the twen­ti­eth century. Further, amici demon­strate that Super PAC and other outside spend­ing since Citizens United provides a strong basis to conclude that elim­in­a­tion of the Corrupt Prac­tices Act would allow corrup­tion to flour­ish in Montana state polit­ics. The brief explains that the exten­sion of Citizens United beyond its original purpose has allowed wealthy and power­ful interests to circum­vent long­stand­ing campaign finance regu­la­tions:

The Court has never ques­tioned the compel­ling interest in fight­ing perceived and actual corrup­tion through limits on direct contri­bu­tions to candid­ates. Campaign contri­bu­tion limit­s—in­clud­ing a long­stand­ing ban on corpor­ate contri­bu­tion­s—are thus an estab­lished aspect of federal campaign finance regu­la­tion. By giving donors an outlet to contrib­ute unlim­ited sums in support of their favored candid­ate, super PACs have rendered these restric­tions mean­ing­less.

The amici urge the court to clarify that a proper read­ing of Citizens United requires courts to exam­ine the factual record before inval­id­at­ing state regu­la­tion of inde­pend­ent expendit­ures, which Montana clearly and persuas­ively presen­ted in this case.

The Montana Supreme Court’s decision can be found here.

The U.S. Supreme Court’s order grant­ing a stay can be found here.

The amicus brief of the Bren­nan Center and consitu­tional and elec­tion law profess­ors can be found here.


Related Court Docu­ments

US Supreme Court Docu­ments

Montana Supreme Court Docu­ments