Challenge to notorious Supreme Court campaign finance ruling brewing in Montana

The Center for Responsive Politics revealed Thursday that corporate campaign spending has skyrocketed since the Supreme Court’s Citizens United v. the Federal Election Commission decision in January 2010. The report comes at the same time as the first major state-level challenge to the controversial ruling.

In the run-up to the 2008 election, Citizens United, a conservative organization that has since aligned itself with the tea party, produced an attack film with the on-the-nose title Hillary: The Movie. When a D.C. court ruled that advertising and widely screening Hillary would be a violation of the McCain-Feingold campaign finance reform law, Citizens United took the case to the U.S. Supreme Court.

In a 5-4 ruling, the Court ultimately determined that corporate expenditures on “electioneering” constitute a form of protected free speech, and that neither state nor federal law can bar corporations or non-profits from using general treasury funds to support or oppose a candidate. At the time, former U.S. Rep. Alan Grayson (D-Fla.), who lost his re-election bid in 2010 to tea partier Daniel Webster, called Citizens United “the worst Supreme Court decision since the Dred Scott case.”

The Center for Responsive Politics now finds that, following the Citizens United decision, midterm spending on campaign ads and electioneering efforts by outside interest groups (including corporations, nonprofit interest groups and unions) has quadrupled. Moreover, 72 percent of spending for ads around the 2010 election came from groups that were legally barred from such spending before the Court made its decision. Although unions and liberal nonprofits have taken advantage of the ruling, outside spending from conservative groups is where the true growth has occurred. In 2010, election spending from conservative groups without direct party connections was up nearly 10 times what it was during the last midterm election cycle. At $190.5 million, it was also nearly double the $98.6 million that non-party-affiliated liberal groups spent on the 2010 election.

A slideshow of some of the Center’s findings is below:

Effects of the Citizens United v. Federal Election Commission View more presentations from s_maccoll

The deluge of corporate money that rushed into the election process once the Supreme Court opened the floodgates has now prompted at least one group to challenge the ruling directly. Free Speech for People is a non-partisan organization dedicated to the idea that constitutional free speech protections intended for individuals don’t extend to corporate spending, nor should they. The group points out [PDF] that, according to polling done by Hart Research, fewer than 14 percent of Americans agree with the Court’s decision, and that 82 percent of Americans believe Congress should step in to place limits on corporate campaign spending.

Now, Free Speech for People is standing by Montana Attorney General Steve Bullock as he works to appeal state Judge Jeffrey Sherlock’s October ruling that Citizens United made Montana’s 1912 Corrupt Practices Act unconstitutional. The Corrupt Practices Act was passed nearly 100 years ago, Free Speech for People co-founder and General Counsel Jeffrey Clements tells The American Independent, because of the undue influence the copper industry had on Montana politics at the turn of the century. Now, a century on, corporate influence has been restored to its place in the political process; Clements and Free Speech for People co-founder John Bonifaz hope to change that.

To that end, Free Speech for People has filed an Amicus Curiae brief [PDF] (a document that an outside party can submit to provide information to a court) with the Montana Supreme Court, which will be hearing Attorney General Bullock’s appeal of Sherlock’s decision.

Bullock and Free Speech for People, however, now face an uphill battle. Western Tradition Partnership (WTP) is an anti-environmental regulation organization that, along with two local businesses, brought the suit that Bullock is now appealing. If WTP and its partners win in the Montana Supreme Court, the state of Montana can take the case to the U.S. Supreme Court; if the state wins, WTP can do the same.

Either way, the case has a very real possibility of ending up under consideration by the U.S. Supreme Court. But with very recent precedent weighing in favor of corporate expenditures and no significant ideological shifts on the Court since the decision, the future of the Montana case seems all but sealed.

Tara Malloy, associate legal counsel for the Campaign Legal Center, a nonprofit dedicated to campaign reform, says that Montana’s best option now is to gather as much evidence as it can to show that unchecked corporate spending is a path to quid pro quos and bribery. “It would be very interesting if Montana could come with a good record—or terrible record, if you will—of corruption,” she says. “But even then, the Supreme Court does not have to accept that.”

Free Speech for People’s Clements has the same take. He says that the onus will now be on Montana to show that the state’s political process is inherently compromised without the Corrupt Practices Act. The fact that all the evidence goes back 100 years, though, might weaken the case. “Will this lead to a reversal of Citizens United?” he says. “Probably not. But it’s important that states do stand up against Citizens United like this, because otherwise, we don’t have democracy anymore.”

Clements stresses that he’s not defying the Supreme Court or arguing that it has created an illegal or unconstitutional political atmosphere. But he hopes that Montana’s case could at least prompt other states to consider taking on the Citizens United decision and alert the Supreme Court to how it has played out across the country. “Corporations aren’t people,” he says. “Multinational corporate money has no place in our elections.”