Sunday, November 4, 2012

Are Political Contributions Statutes a Violation of the First Amendment?

The upcoming presidential elections have brought about many controversies. A major recurring issue is that of political contributions.  What are the political contribution laws in various states? How do they apply to individuals?  To corporations?  One state may have various provisions that differ from another.  For example, Mr. Tom DeLay explains the stricter Texas laws prevent political contributions from private corporations to state campaigns.  Although the statute did not mention what forms of contributions are barred, the statute has been interpreted to bar almost all campaign donations, including checks.

However, the issue at hand this time involves Montana law.  According to Montana state law, a “corporation may not make . . . an expenditure in connection with a candidate or political committee that supports or opposes a candidate or political party.”[1]In the recent Supreme Court case of American Tradition Partnership, Inc., the petitioners raised the question of whether the Montana State Law violates the First Amendment.[2]  This issue is significant because what constitutes “speech” under the First Amendment is the sub-question.  If political contributions are considered “speech,” political contributions should be allotted.  However, if political contributions are not considered “speech,” the petitioners would have violated Montana law for political contributions.

When the issue was brought to the Montana Supreme Court, the court rejected the petitioners’ claim that the Montana statute violated the First Amendment of the United States Constitution.[3] According to Montana, expenditures corporations make in connection with a candidate or committee were not considered forms of speech or expression to be protected under the First Amendment.

However, in the case of Citizens United, the Supreme Court struck down a similar law and held that “political speech does not lose its First Amendment protection simply because its source is a corporation.” [4] Therefore, the real question the Supreme Court had to deal with was whether the ruling of Citizens United applied to Montana.

The Supreme Court granted the petitioners’ petition for certiorari and reversed the Supreme Court of Montana’s judgment. The Supreme Court held that Citizens United applies to Montana state law and that Montana’s arguments had already been rejected in Citizens United or failed to meaningfully distinguish this case. Therefore, the Supreme Court overruled Montana by holding that political contributions are considered speech or expression, and therefore entitled to First Amendment protections.

However, not all Supreme Court justices agreed with this ruling. Justices Breyer, Ginsburg, Sotomayor, and Kagan joined in a dissenting opinion arguing that Justice Stevens’ opinion in Citizens United stated, “technically independent expenditures can be corrupting in much the same way as direct contributions.”[5] From Citizens United, Justice Stevens also held that “a substantial body of evidence” suggested that “many corporate expenditures . . . had become essentially interchangeable with direct contributions in their capacity to generate quid pro quo arrangements.”[6] The dissenting opinion stressed the importance of Citizens United that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”.[7] In addition, the dissenting opinion argued that the Supreme Court’s legal conclusion should not bar the Montana Supreme Court’s finding led to corruption or the appearance of corruption in Montana.  In considering Montana’s state history, the Montana Supreme court did conclude that Montana had a compelling state interest in limiting corporation expenditures.[8] Therefore, in upholding Citizens United, the Supreme Court casts doubt on the Montana court’s supposition that independent expenditures are not corrupt or appear to do so.[9]

In overruling Montana’s statute, the federal government has seemed to usurp the state’s ability to make law.  The First Amendment was upheld over Montana’s state law, which prevented corporations to make expenditures in connection with a candidate or political committees that support or opposes other candidates or committees. Montana’s underlying compelling state interest was to prevent corruption or the appearance of corruption, which was highly probable in the event of corporation expenditures.  However, the Supreme Court valued the First Amendment’s freedom of speech and expression over Montana’s state interest.  The Supreme Court equated political expenditures to political speech.

 I believe that the equation of political expenditures to political speech is a little too far extended.  Political expenditures should be considered in a complete different realm from speech or expression.  Although political expenditures may demonstrate a form of political expression, political expenditures have the potential for abuse and corruption, even if unintended.  As the dissenting opinion stated before, corporation expenditures have become interchangeable with direct contributions due to the ability to generate quid pro quo arrangements.  In fact, other states have legislation to prevent this sort of corruption, namely Texas. The Supreme Court has not overruled Texas’ statutes on political expenditures and prevention of companies from donating to state elections.  However, Texas’ statutes were enforced due to rampant corruption due to the ambiguity and lax enforcement that had previously caused scandals for years.[10]

Texas could bode an unfortunate forecast for Montana.  Without a campaign regulation statute, Montana is an open playground for corruption as Texas used to be with lax and ambiguous campaign contribution statutes.  Upholding the First Amendment for freedom of political expenditures opens a Pandora’s Box for a potential of corruption that could affect other states, and even the entire country.  In overruling Montana, the Supreme Court is stepping off line by extending what defines speech too far, to the realm of political contributions.  Contributions are an entirely different animal, economic in nature that brings with them a harmful potential of abuse.

The Supreme Court should reconsider its decision in Citizens United or at least in the case of American Tradition Partnership, Inc.,  However, the court has a per curium disposition and is highly unlikely to reconsider its decision.  Even so, the Supreme Court should deny the petition for certiorari or overrule Citizens United in future case law to prevent the potential for corruption.

Amelia Wong
Blogger, Criminal Law Brief

[1] Mont. Code Ann. §13-35-227(1) (2011).
[2] American Tradition Partnership, Inc. v. Bullock, 567 U.S. (2012).
[3] 2011 MT 328, 363 Mont. 220, 271 P. 3d 1.
[4] Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
[5] Id.
[6] Id. at 64-65.
[7] Id.
[8] 2011 MT 328, ¶¶ 36–37, 363 Mont. 220, 235-236, 271 P. 3d 1, 36-37.

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