Jess Bravin at WSJ reports that Montana is defending a provision of its campaign finance law that seems to be in tension with Citizens United. The AG of Montana argues that the facts and circumstances of Montana requires a different standard. Returning to a common theme on this blog, I ask whether the Constitution–the First Amendment in this case–shouldmean different things in different places?
After the Supreme Court freed corporations and unions to pay for advertisements supporting or attacking candidates for federal office, many states concluded that their own restrictions on such electioneering were doomed as well.
Not Montana. Sued by three corporations seeking to influence the Nov. 2 legislative election, Attorney General Steve Bullock is arguing that Montana’s Corrupt Practices Act of 1912 remains constitutional—even though the Supreme Court scotched similar provisions of the 2002 federal Bipartisan Campaign Reform Act, known after its sponsors as McCain-Feingold.
At least nine of the 24 states with campaign laws threatened by Citizens United have repealed or suspended them, according to Jennie Bowser of the National Conference of State Legislatures. Only Montana is known to be defending its law, she said.
“Montana has a record, a history and a present that’s different from what the Supreme Court had in front of it,” says Mr. Bullock, a Democrat elected in 2008. “In Montana, we have a record that shows those expenditures did corrupt and do corrupt.”
Specifically, the AG argues that the reasoning of Citizens United does not apply to his state:
Mr. Bullock says some of the Supreme Court’s reasons for overruling the federal law don’t apply to his state. Justice Kennedy’s opinion found that Federal Election Commission requirements, numbering nearly 2,000 pages, were so “onerous” that many corporations would rather not make political expenditures than risk a fine.
“In Montana,” Mr. Bullock says, “it takes two minutes to register as a political committee and our commissioner of political practices will help you fill out the form.” Instead of the FEC bureaucracy, “the whole commissioner’s office is in a converted house and it’s essentially one room.”
This issue is interesting for a few reasons. Many progressive supporters of Citizens United may find this argument appealing, in much the same way that Justice Stevens wrote that Chicago is a dangerous place, and they should be able to provide different levels of constitutional protection. But, replace campaign finance spending, with, say, the establishment clause, and look how quickly this issue turns. Let’s say Montana is a very homogeneously Christian state, and in some localities, 100% of the citizenry follows a single faith. In such a place, there is zero objection to prayer in public schools. In such a case, can the First Amendment mean something else, and permit prayer in school?