By Bill Wilson — Apparently, the Montana State Supreme Court missed a rather important part of the Federal Constitution, the Supremacy Clause, in a Dec. 2011 ruling that upheld a state law prohibiting corporations from engaging in electioneering.
Fortunately, the U.S. Supreme Court, led by Chief Justice John Roberts, stood ready to remind the state court of its place in the judicial pecking order.
At question in that case was whether the Montana court needed to follow the U.S. Supreme Court’s ruling in Citizens United v. the Federal Election Commission, which found against provisions that restricted Citizens United from broadcasting a movie it developed, Hillary: The Movie, that was supposed to air during the 2008 Democratic Primary.
In its single-page per curiam decision, American Tradition Partnership v. Bullock, the Court wrote, “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2.”
There the Court was referring to the Supremacy Clause of the Constitution, which states that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”.
In short, yes, state courts must follow Supreme Court rulings. How was there even any question? Citizens United was pretty clear cut. Federal restrictions on independent political expenditures by a corporation were a violation of the First Amendment.
Yet somehow the Montana court ruled that “Citizens United does not compel a conclusion that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional.” It claimed that it had somehow applied “the principles enunciated in Citizens United” which would have upheld Montana’s compelling interest in regulating against corruption.
Except, Citizens United offered no such possibility. There was no test established whereby such speech could be restricted under any circumstances.
In particular, Justice Anthony Kennedy in the majority decision wrote, “Limits on independent expenditures… have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question.”
To wit, Kennedy added, “political speech does not lose First Amendment protection simply because its source is a corporation.”
Nonetheless, the Montana court rested its judgment on this line of the Citizens United decision pulled out of context stating that “If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.”
Yes that was in the decision, but Kennedy also warned, “The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy [emphasis added].”
So the Montana Supreme Court distorted what Kennedy wrote to justify a very similar, outright ban on independent expenditures in Montana.
To be clear, even if the government had demonstrated a compelling interest in either the Citizens United or American Tradition Partnership cases, the speech in question was still undeniably protected by the First Amendment.
There simply was and is no wiggle room there. The Montana court invented its logic out of whole cloth to suit its ends. The only benefit of this case is it reaffirms that states must follow the First Amendment too. Now there will be no back door restrictions of independent political speech via state legislatures.
This was nothing more than a thinly veiled attempt to revisit the Citizens United ruling, a tired cause that similarly shows some traction on Capitol Hill, too. Fortunately the Supreme Court did not bite. Its simple one page ruling was nothing short of a smack down.
So, enough is enough. The Citizens United case was decided over two years ago. The First Amendment is still the supreme law of the land.
There is still one question to be answered however. Why does the leftwing establishment, most Democrats and a fair number of statist “Republicans” hate free speech so much? Could it be they know in their guts that their arguments and causes will never win in a fair debate before the American people, that the only way their authoritarian, collectivist views will ever prevail is in a fixed fight? It would surely seem that way.
Bill Wilson is the President of Americans for Limited Government. You can follow Bill on Twitter at @BillWilsonALG.
