Appendix

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FILED December 30, 2011

Ed Smith Clerk of the Supreme Court

State of Montana

DA11-0081

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 328__________________________

WESTERN TRADITION PARTNERSHIP, INC.,a corporation registered in the State of Montana,and CHAMPION PAINTING, INC., a Montanacorporation, MONTANA SHOOTING SPORTSASSOCIATION, INC., a Montana corporation,

Plaintiffs, Appellees andCross-Appellants,

v.

ATTORNEY GENERAL of the State of Montana,and COMMISSIONER OF THE COMMISSIONFOR POLITICAL PRACTICES,

Defendants and Appellants.__________________________

APPEAL FROM: District Court of the First Judi-cial District, In and For theCounty of Lewis and Clark,Cause No. BDV 10-238Hon. Jeffrey M. Sherlock, Presid-ing Judge

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COUNSEL OF RECORD:

For Appellants:

Steve Bullock (argued), Montana AttorneyGeneral; Anthony Johnstone, Solicitor, JamesP. Molloy, Assistant Attorney General, Hel-ena, Montana

For Appellees:

Margot E. Barg (argued); Wittich Law Firm,P.C., Bozeman, Montana

For Amici Curiae:

Amy Poehling Eddy; Bottomly, Eddy & Sand-ler, Kalispell, Montana (for former MontanaSupreme Court Justices William E. Hunt, Sr.,W. William Leaphart, James M. Regnier, Ter-ry N. Trieweiler and John Warner)

Lawrence A. Anderson, Attorney at Law,Great Falls, Montana (for MTLA, MontanaConservation Voters, Montanans for Corpo-rate Accountability, and Montana League ofRural Voters)

Elizabeth L. Griffing, Attorney at Law; ErinKraft, Clinic Student, University of Montana,Missoula, Montana (for ACLU of MontanaFoundation)

Jonathan Motl; Morrison Motl & Sherwood,Helena, Montana Jeffrey D. Clements, Clem-ents Law Office, LLC, Concord, Massachusetts(for Free Speech for People; American Sustain-able Business Council; Novak and Novack,Inc., d/b/a Mike’s Thriftway; Home Resource,Inc., and The American Independent Business

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Alliance)

Mark Mackin, Attorney at Law, Helena, Mon-tana (for Montana Public Interest ResearchGroup and Peoples Power League)

Karl J. Englund, Karl J. Englund, P.C., Mis-soula, Montana; Karl J. Sandstrom, PerkinsCoie LLP, Washington, D.C. Michael T. Libur-di, James A. Ahlers, Jerica L. Peters, PerkinsCoie LLP, Phoenix, Arizona (for Domini SocialInvestments LLC; Trillium Asset ManagementCorporation; Newground Social Investment;Interfaith Center On Corporate Responsibil-ity; Harrington Investments, Inc.; The Sus-tainability Group of Loring, Wolcott & Coo-lidge; Calvert Asset Management Company,Inc.; The Christopher Reynolds Foundation,Inc.; and Walden Asset Management, a Divi-sion of Boston Trust & Investment Manage-ment Company)

Lee Bruner, Attorney at Law, Butte, Mon-tana[,] Allen Dickerson, Attorney at Law,Alexandria, Virginia (for Center for Competi-tive Politics)

__________________________

Argued and Submitted: September 21, 2011

Decided: December 30, 2011

[/s/] Filed:

Clerk

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Chief Justice Mike McGrath delivered the Opinion ofthe Court.

¶1 The Attorney General of Montana and theCommissioner of Political Practices appeal from theDistrict Court’s Order on Cross-Motions for Sum-mary Judgment filed October 18, 2010. We reverse.

PROCEDURAL ANDFACTUAL BACKGROUND

¶2 Western Tradition Partnership (WTP), Cham-pion Painting and Montana Shooting Sports Founda-tion (MSSF) sued the Montana Attorney General andthe Commissioner of Political Practices seeking adeclaration that § 13-35-227(1), MCA, violated theirfreedom of speech protected by the United States andMontana Constitutions by prohibiting political ex-penditures by corporations on behalf of or opposingcandidates for public office. The parties filed cross-motions for summary judgment along with briefs andsupporting materials. The District Court declaredthe statute unconstitutional, granted summaryjudgment for the plaintiffs and denied summaryjudgment to the State defendants. The District Courtenjoined enforcement of the statute and denied themotion of Champion and MSSF for an award ofattorney fees. The State appeals the order of sum-mary judgment in favor of the plaintiffs, and Cham-pion and MSSF cross-appeal from the denial of theirrequest for attorney fees.

STANDARDS OF REVIEW

¶3 This Court reviews a district court’s decision onsummary judgment using the same standards as thedistrict court under M. R. Civ. P. 56. Where there arecross motions for summary judgment and the district

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court is not called upon to resolve factual issues, butonly to draw conclusions of law, we review to deter-mine whether those conclusions are correct. Bud-Kalv. City of Kalispell, 2009 MT 93, ¶ 15, 350 Mont. 25,204 P.3d 738. Accordingly, a moving party is entitledto summary judgment when there are no genuine is-sues of material fact and the moving party is entitledto judgment as a matter of law. Town & CountryFoods v. City of Bozeman, 2009 MT 72, ¶ 12, 349Mont. 453, 203 P.3d 1283. Statutes enjoy a pre-sumption of constitutionality, and a decision on theconstitutionality of a statute is subject to plenaryreview. City of Billings v. Albert, 2009 MT 63, ¶ 11,349 Mont. 400, 203 P.3d 828.

DISCUSSION

¶4 Section 13-35-227, MCA, was originally enactedas an initiative by the Montana voters in 1912. Itprovides:

(1) A corporation may not make a contribu-tion or an expenditure in connection with acandidate or a political committee that sup-ports or opposes a candidate or a politicalparty.

(2) A person, candidate or political commit-tee may not accept or receive a corporatecontribution described in subsection (1).

(3) This section does not prohibit the estab-lishment or administration of a separatesegregated fund to be used for making politi-cal contributions or expenditures if the fundconsists only of voluntary contributions solic-ited from an individual who is a shareholder,employee or member of the corporation.

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(4) A person who violates this section issubject to the civil penalty provisions of 13-37-128.

Section 13-37-128, MCA, provides the sanction for aviolation of § 13-35-227, MCA, and allows the Com-missioner of Political Practices to recover a civilpenalty up to $500 or triple the amount of the un-lawful expenditure. A corporation may establish aseparate segregated fund called a political committeeor PAC to make political expenditures “if the fundconsists of only voluntary contributions solicitedfrom an individual who is a shareholder, employee,or member of the corporation. [sic] Section 13-35-227(3), MCA. Montana law requires that all politicalcommunications must include the name and addressof the person or entity that paid for the communica-tion. Section 13-35-225, MCA.

¶5 Champion Painting, Inc., is incorporated underthe laws of Montana. It is a single proprietor paint-ing and drywall business with no employees ormembers, and its sole shareholder is KennethChampion. It is the only business corporation in thisaction. Mr. Champion is personally active in countyand state politics, supporting and opposing candi-dates through blogs, letters to the editor, and speech-es. Champion states that he wants to speak on po-litical issues as a spokesman for his corporation andwants to spend corporation funds to independentlysupport or oppose candidates. He believes that doingso would be prohibited by § 13-35-227(1), MCA.

¶6 MSSA is a voluntary association of persons whosupport and promote firearm safety, shooting sports,education, shooting facilities and Second Amend-

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ment rights. It was incorporated in 1990 to provideliability shelter for its officers and directors. It hasno employees or shareholders and its funding comesprimarily from member dues and donations fromother organizations. MSSA is led by its founder GaryMarbut, who is active in Montana politics on behalfof the Association. He and the MSSA have operateda political committee under Montana law for over tenyears and publicize its grading and endorsements ofpolitical candidates in state and national elections.Marbut believes that the MSSA “has a politicalpresence in Montana, and a political reputation thatcarries some weight with the Montana public byvirtue of our long history of activism in Montana.”Nonetheless Marbut wants to use MSSA memberdues to support or oppose candidates and believesthat § 13-35-227(1), MCA, prohibits MSSA fromdoing so.

¶7 Western Tradition Partnership is an entityincorporated in Colorado in 2008 and registered to dobusiness in Montana. WTP reveals no more thanthat about itself in this case. Evidence presented bythe State in District Court and not refuted by WTPis that its purpose is to act as a conduit of funds forpersons and entities including corporations whowant to spend money anonymously to influence Mon-tana elections. WTP seeks to make unlimited expen-ditures in Montana elections from these anonymousfunding sources. WTP’s operation is premised on thefact, or at least the assumption, that its independentexpenditures have a determinative influence on theoutcome of elections in Montana.

¶8 Upon the plaintiffs’ motion for summary judg-

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ment, the District Court considered whether § 13-35-227(1), MCA, violates the First Amendment to theUnited States Constitution to the extent that itrestricts WTP, MSSA or Champion from makingindependent corporate expenditures on behalf ofcandidates. The District Court applied Citizens1

United v. F.E.C., 130 S. Ct. 876, 175 L. Ed. 2d 753(2010) and determined that § 13-35-227(1), MCA,impacts the corporations’ political speech protectedby the United States Constitution. The DistrictCourt then considered whether the State had demon-strated a compelling interest for the restriction onspeech, and whether the restriction is narrowlytailored to achieve that interest. While it answeredboth questions in the negative, the District Court didnot conduct a detailed analysis of the compellinginterest question. Instead, it concluded that “CitizensUnited is unequivocal: the government may notprohibit independent and indirect corporate expendi-tures on political speech.” (Quoting Minn. Chamberof Comm. v. Gaertner, 710 F. Supp. 2d 868 (D. Minn.2010)). The District Court specifically did not ad-dress whether § 13-35-227, MCA, violated the Mon-tana Constitution, and further noted that the deci-sion had “no effect on direct corporate contributionsto candidates or to any existing or future disclosurelaws that might be enacted.” Those aspects of Mon-tana law are therefore not at issue in this case.

Under Montana law corporations are allowed to make1

independent expenditures on ballot issues. MontanaChamber of Commerce v. Argenbright, 226 F.3d 1049 (9thCir. 2000).

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¶9 We take note that Western Tradition appears tobe engaged in a multi-front attack on both contribu-tion restrictions and the transparency that accompa-nies campaign disclosure requirements. In additionto this case, it is currently engaged in separate liti-gation in the same District Court involving the Mon-tana laws on campaign spending disclosures. West-ern Tradition Partnership v. Gallik, Cause BDV2010-1120 (Mont. 1st Jud. Dist. Ct.). In another2

action filed in United States District Court in Sep-tember, 2011, WTP, under its new name of AmericanTradition Partnership, and with others, challengesthe constitutionality of most of the limits and disclo-sure requirements contained in § 13-37-216, MCA.Lair, et al., v. Gallik, et al., United States DistrictCourt for the District of Montana, Billings Division.Ironically, perhaps, WTP argued in the DistrictCourt and in its oral presentation to this Court onappeal that their compliance with these same disclo-sure laws that it now seeks to invalidate shouldremedy any concerns regarding the potential cor-rupting influence of its unlimited corporate expendi-tures.

In a decision in October, 2010, the Montana Commis-2

sioner of Political Practices found that WTP had created asham organization through which to channel campaignfunds, and that its arguments to the contrary were decep-tive. The Commissioner further concluded that WTP’sfailure to register as a political committee and to disclosethe true source and disposition of the funds it raised“frustrates the purpose of Montana’s Campaign Financeand Practices Act [and] raises the specter of corruption ofthe electoral process. . . .”

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¶10 The District Court erroneously construed andapplied the Citizens United case. That case consid-ered the constitutionality of Federal statutes andregulations that prohibited corporations from “elec-tioneering” (making a communication that refers toa clearly identified candidate for Federal office)within 30 days of a primary election or 60 days of ageneral election.

¶11 Citizens United was a case decided upon itsfacts, and involved “unique and complex” rules thataffected 71 distinct entities and included separaterules for 33 different types of speech in Federalelections. Since 1975, the Federal Election Commis-sion adopted 568 pages of regulations, 1,278 pages ofexplanatory materials, and 1,771 advisory opinionsto implement and enforce the Federal law. The FECadopted a two-part, 11-factor test in response to theholding in a single Supreme Court decision. Ifparties want to avoid litigation and possible penal-ties they must either refrain from political speech orseek an advisory opinion. All of this, the SupremeCourt found, allows the FEC to “select what politicalspeech is safe for public consumption by applying

ambiguous tests.” Citizens United, 130 S. Ct. at 895-96. The Court determined that the law was “anoutright ban, backed by criminal sanctions.” CitizensUnited, 130 S. Ct. at 897.

¶12 A premise of Citizens United was that FirstAmendment protections extend to corporations.Citizens United, 130 S. Ct. at 899. The Court addi-tionally determined that the option for a corporationto spend through a separate PAC was not a sufficientalternative because of the burdensome, extensive,

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and expensive Federal regulations that applied. TheFederal law allowed corporations to form a separatesegregated fund (sometimes called a political actioncommittee or PAC) as long as the funds were limitedto donations from stockholders or, in the case ofunions, its members. The Court found the regula-tions governing the organization of PACs to be“onerous” restrictions that might not allow a corpora-tion to establish a PAC in time to make its viewsknown in a current campaign. Citizens United, 130S. Ct. at 898. Therefore, because the Federal lawsand regulations severely restricted speech, theirconstitutionality could be maintained only upon ashowing that they further a compelling governmen-tal interest and are narrowly tailored to achieve thatinterest. Citizens United, 130 S. Ct. at 898.

¶13 The Court found that the Government did notclaim that corporate expenditures had actuallycorrupted the political process and concluded that“independent expenditures, including those made bycorporations, do not give rise to corruption or theappearance of corruption.” Citizens United, 130 S.Ct. at 909. However, if elected officials do succumb toimproper influences from independent expenditures,“then surely there is cause for concern.” CitizensUnited, 130 S. Ct. at 911.

¶14 The Court determined that the government hadnot provided a compelling interest to justify thespeech restrictions at issue. The Court consideredand rejected arguments that preventing the distort-ing effect of large expenditures; preventing corrup-tion or te appearance of corruption; or protection ofdissenting shareholders were sufficient interests to

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support the Federal restrictions. Therefore, findingno compelling interest for the Federal restrictions oncorporate political speech through independentexpenditures, the Court found an impermissiblecontravention of the First Amendment. CitizensUnited, 130 S. Ct. at 911.

¶15 While Citizens United was decided under itsfacts or lack of facts, it applied the long-standing3

rule that restrictions upon speech are not per seunlawful, but rather may be upheld if the govern-ment demonstrates a sufficiently strong interest.Citizens United, 130 S. Ct. at 898; Federal ElectionComm. v. Mass. Citizens for Life, Inc., 479 U.S. 238,251-52, 107 S. Ct. 616, 624 (1986); Bluman v. Fed-eral Election Commission, 2011 U.S. Dist. LEXIS86971 (D. D.C. 2011) (upholding Federal ban againstcampaign contributions by foreign citizens). TheSupreme Court in Citizens United applied thehighest level of scrutiny to the restrictions at issuethere, requiring the government to demonstrate acompelling interest, although the level of evidenceneeded to satisfy heightened scrutinywill vary withthe “novelty and plausibility of the justificationraised.” Nixon v. Shrink Missouri Government PAC,528 U.S. 377, 391, 120 S. Ct. 897, 906 (2000). There-fore, the factual record before a court is critical todetermining the validity of a governmental provisionrestricting speech. The Dissents assert that CitizensUnited holds unequivocally that no sufficient govern-ment interest justifies limits on political speech. We

The Court noted, for example, the “scant evidence” of3

the effects of independent expenditures. Citizens United,130 S. Ct. at 910.

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disagree. The Supreme Court held that laws thatburden political speech are subject to strict scrutiny,which requires the government to prove that the lawfurthers a compelling state interest and is narrowlytailored to that interest. The Court, citing WisconsinRight to Life v. FEC, 551 U.S. 449, 464, 127 S. Ct.2652, 2663-64 (2007), clearly endorsed an analysis ofrestrictions on speech, placing the burden upon thegovernment to establish a compelling interest.Citizens United, 130 S. Ct. at 898. Here the govern-ment met that burden.

¶16 In this case both sides moved the District Courtfor summary judgment. The WTP parties conductedno discovery in the case and presented two briefaffidavits, one from the MSSF and one from Mr.Champion in support of summary judgment. TheState presented a more extensive record consisting ofthe deposition transcripts of both Mr. Champion andMr. Marbut of the MSSF, along with seven affidavitsand attached exhibits. The plaintiffs did not contestany of this evidence. Nonetheless, the District Courtfailed to give adequate consideration to the record indetermining whether the State had demonstrated acompelling interest for the restrictions imposed by§ 13-35-227(1), MCA. We do so now because, unlikeCitizens United, this case concerns Montana law,Montana elections and it arises from Montanahistory.

¶17 First, the depositions of Marbut (on behalf ofMSSF) and Champion demonstrate that both havebeen very active politically in Montana on a range ofissues that concern them. Neither could demonstrateany material way in which Montana law hindered or

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censored their political activity or speech. Mr.Marbut, on behalf of MSSF, has been an activefixture in Montana politics and in the legislativeprocess for many years. He stated that he believedthat while Montana law allowed MSSF to obtain andspend donations from other organizations on politicalactivities, it did not allow MSSF to use dues paid byits members for the same purposes. No such distinc-tion appears in Montana law, and the affidavit of theCommissioner of Political Practices affirms hisconstruction of Montana law that it places no suchrestriction on MSSF. MSSF, therefore, failed todemonstrate that its speech was impaired by thestatute.

¶18 Similarly, Mr. Champion described his manypolitical activities both on a local and state level. Heaffirmed that he regularly speaks, blogs, and meetswith others, and has run for public office. His com-plaint was that he believed that Montana law pro-hibits him from telling his audiences and readersthat his company, Champion Painting, also supportshis views. Mr. Champion believes that a candidateendorsement by “Champion Painting, Inc.” would bemore persuasive than his personal endorsement, andthat if his business spends money on political eventshe will enjoy “tax benefits.” However, in Champion’scase he is the sole shareholder and derives hislivelihood from the money he pays himself from thecorporation. While the statute forbids the expendi-ture of Champion Painting’s corporate funds tosupport or oppose candidates, the burden uponKenneth Champion, as a sole shareholder, to estab-lish a political committee to advocate for his corpora-

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tion’s interests and expend funds that he will decideto contribute, are particularly minimal. We conclude,under these facts, Champion’s political speech wassimilarly not materially impacted by the statute.

¶19 WTP, as noted, has been terse in its explana-tions of its organization, funding, activities, andintent. It claims to be a foreign corporation but it isnot a business corporation. Its purpose, according toun-rebutted evidence submitted to the District Courtby the State, is to solicit and anonymously spend thefunds of other corporations, individuals and entitiesto influence the outcome of Montana elections. In apromotional presentation directed to potential do-nors, WTP represented:

There’s no limit to how much you can give.As you know, Montana has very strict limitson contributions to candidates, but there is nolimit to how much you can give to this pro-gram. You can give whatever you’re comfort-able with and make as big of an impact as youwish.

Finally, we’re not required to report thename or the amount of any contribution thatwe receive. So, if you decide to support thisprogram, no politician, no bureaucrat, and noradical environmentalist will ever know youhelped make this program possible. The onlything we plan on reporting is our success tocontributors like you who can see the benefitsof a program like this. You can just sit back onelection night and see what a difference you’vemade.

Western Tradition Partnership, 2010 Election Year

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Program Executive Briefing. (Emphasis added.)

¶20 Organizations like WTP that act as conduits foranonymous spending by others represent a threat tothe “political marketplace.” Mass. Citizens for Life,Inc., 479 U.S. at 264, 107 S. Ct. at 631. Echoing thattheme, the State presented evidence that WTP hasoperated in disregard for and without complyingwith Montana law, unlike MSSF and Champion.Because WTP has not disclosed its operation, it isdifficult to determine how it might be impacted by§ 13-35-227(1), MCA, but given the evidence pre-sented below we will assume there is a direct impact.

¶21 Second, a material factual distinction betweenthe present case and Citizens United is the extent ofthe regulatory burden imposed by the challengedlaw. As noted above, the Court in Citizens Unitedemphasized the length, complexity and ambiguity ofthe Federal restrictions, including the power of theFEC to determine what speech is “safe for publicconsumption,” and the difficulty of establishing aPAC as an alternative to direct corporate spending.In contrast, under Montana law a political commit-tee can be formed and maintained by filing simpleand straight-forward forms or reports. (See e.g. §§ 13-37-201 and -210; 13-35-402, MCA.) Mr. Marbut inhis deposition described that MSSF has establishedits own political committees and used them toactively participate in the Montana political processover a period of years. The evidence submitted by theState in the District Court similarly demonstratesthat corporations, through their political committeesorganized under Montana law, are and have been asubstantial presence and active participants in

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Montana politics. The many lobbyists and politicalcommittees who participate in each session of theMontana Legislature bear witness. Under the undis-puted facts here, the political committee is an easilyimplemented and effective alternative to direct cor-porate spending for engaging in political speech.This alternative is available to any corporation inMontana, and to MSSF and Champion, as well asWTP should they choose to comply with existingMontana law. In the case of MSSF the evidenceshows that it has in fact effectively used the politicalcommittee form for years and there is no showingthat it could not continue to do so.

¶22 Third, the Montana law at issue in this casecannot be understood outside the context of the timeand place it was enacted, during the early twentiethcentury. (Montana became a state in 1889.) Thosetumultuous years were marked by rough contests forpolitical and economic domination primarily in themining center of Butte, between mining and indus-trial enterprises controlled by foreign trusts orcorporations. These disputes had profound long-termimpacts on the entire State, including issues regard-ing the judiciary, the location of the state capitol, theprocedure for election of U.S. Senators, and theownership and control of virtually all media outletsin the State.

¶23 Examples of well-financed corruption abound.In the fight over mineral rights between entrepre-neur F. Augustus Heinze and the Anaconda Com-pany, then controlled by Standard Oil, Heinzemanaged to control the two State judges in Butte,who routinely decided cases in his favor. K. Ross

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Toole, Montana, An Uncommon Land, 196-99 (Univ.of Okla. Press 1959) the Butte judges denied beingbribed, but one of them admitted that Anacondarepresentatives had offered him $250,000 cash tosign an affidavit that Heinze had bribed him. Toole,Montana, An Uncommon Land, 204.

¶24 In response to the legal conflicts with Heinze,in 1903 Anaconda/Standard closed down all itsindustrial and mining operations (but not the manynewspapers it controlled), throwing 4/5 of the laborforce of Montana out of work. Toole, Montana, AnUncommon Land, 206. Its price for sending itsemployees back to work was that the Governor calla special session of the Legislature to enact a mea-sure that would allow Anaconda to avoid having tolitigate in front of the Butte judges. The Governorand Legislature capitulated and the statute survives.See e.g. Patrick v. State, 2011 MT 169, ¶¶ 17-23, 361Mont. 204, 257 P.3d 365.

¶25 W. A. Clark, who had amassed a fortune fromthe industrial operations in Butte, set his sights onthe United States Senate. In 1899, in the wake of alarge number of suddenly affluent members, theMontana Legislature elected Clark to the U. S.Senate. Clark admitted to spending $272,000 in theeffort and the estimated expense was over $400,000.Complaints of Clark’s bribery of the Montana Legis-lature led to an investigation by the U. S. Senate in1900. The Senate investigating committee concludedthat Clark had won his seat through bribery andunseated him. The Senate committee “expressedhorror at the amount of money which had beenpoured into politics in Montana elections . . . and

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expressed its concern with respect to the generalaura of corruption in Montana.” Toole, Montana, AnUncommon Land, 186-94.

¶26 In a demonstration of extraordinary boldness,Clark returned to Montana, caused the Governor toleave the state on a ruse and, with assistance of thesupportive Lt. Governor, won appointment to thevery U. S. Senate seat that had just been deniedhim. Toole, Montana, An Uncommon Land, 192-93.When the Senate threatened to investigate andunseat Clark a second time, he resigned. Clarkeventually won his Senate seat after spendingenough on political campaigns to seat a MontanaLegislature favorable to his candidacy.

¶27 After the Anaconda Company cleared itself ofopposition from Heinze and others, it controlled 90%of the press in the state and a majority of the legisla-ture. C. B. Glasscock, The War of the Copper Kings,290 (Grosset & Dunlap, N.Y. 1935). By 1915 the com-pany, after having acquired all of Clark’s holdings aswell as many others, “clearly dominated the Mon-tana economy and political order . . . [and] local folksnow found themselves locked in the grip of a corpora-tion controlled from Wall Street and insensitive totheir concerns.” Michael Malone and Richard Roeder,Montana, a History of Two Centuries, 176 (Univ. ofWash. Press, Seattle 1976). Even at that time it wasevident that industrial corporations controlled thestate “thus converting the state government into apolitical instrument for the furthering and accom-plishment of legislation and the execution of lawsfavorable to the absentee stockholders of the largecorporations and inimical to the economic interests

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of the wage earning and farming classes who consti-tute by far the larger percentage of the population inMontana.” Helen Fisk Sanders, History of Montana,Vol. 1, 429-30 (Lewis Pub. Co. 1913).

¶28 In 1900 Clark himself testified in the UnitedStates Senate that “[m]any people have become soindifferent to voting” in Montana as a result of the“large sums of money that have been expended in thestate. . . .” Toole, Montana, An Uncommon Land,184-85. This naked corporate manipulation of thevery government (Governor and Legislature) of theState ultimately resulted in populist reforms thatare still part of Montana law. In 1906 the peoplevoted to amend the state Constitution to allow forvoter initiatives. Not long thereafter, in 1906 thisnew initiative power was used to enact reforms in-cluding primary elections to choose political candi-dates; the direct election of United States Senators;and the Corrupt Practices Act, part of which survivesas § 13-35-227, MCA, at issue in this case.

¶29 The State of Montana was still contending withcorporate domination even in the mid-20th century.For example, the Anaconda Company maintainedcontrolling ownership of all but one of Montana’smajor newspapers until 1959. Writing in 1959, his-torian K. Ross Toole so noted and described thestate:

Today the influence of the Anaconda Companyin the state legislature is unspectacular butvery great. It has been a long time since thecompany showed the mailed fist. But no in-formed person denies its influence or the factthat the basic use to which it is put is to main-

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tain the status quo—to keep taxes down, notto rock the boat. Few of the company person-nel either in Butte or in New York rememberF. Augustus Heinze, or even for that matter,[U. S. Senator] Joseph M. Dixon, but it wouldbe foolish for anyone to deny that the perva-sive influence of the Anaconda Company inMontana politics is part and parcel of theMontana heritage.

Toole, Montana, An Uncommon Land, 244. A studyof Montana in the early 1970s concluded that corpo-rate influence of the Anaconda Company had been“replaced by a corporate power structure, with inter-locked directorates, the same law firms and commonbusiness interests” among the Anaconda Company,Montana Power Company, Burlington NorthernRailway and the First Bank System. Malone andRoeder, Montana, a History of Two Centuries, 290.History professor Dr. Harry Fritz, in his affidavitpresented in the District Court, affirmed that the“dangers of corporate influence remain in Montana”because the resources upon which its economydepends in turn depend upon distant markets. Heaffirmed: “What was true a century ago is as truetoday: distant corporate interests mean that corpo-rate dominated campaigns will only work ‘in theessential interest of outsiders with local interests avery secondary consideration.’” While specific corpo-rate interests come and go in Montana, they arealways present. Montana’s mineral wealth, forexample, has historically been exported from theState, and that is still true today. CommonwealthEdison Co. v. State of Montana, 189 Mont. 191, 196,

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615 P.2d 847, 850 (1980), aff’d, 453 U.S. 609, 101 S.Ct. 2946. The corporate power that can be exertedwith unlimited political spending is still a vitalinterest to the people of Montana.

¶30 Furthermore, in the evidence presented belowthe State demonstrated aptly how even small expen-ditures of money can impact Montana elections. TheState submitted affidavits from two respected andexperienced politicians and public servants. BobBrown, a Republican, served in the Montana Houseof Representative, in the Montana Senate, as theMontana Secretary of State and as an unsuccessfulcandidate for Governor. He retired in 2010 as aSenior Fellow at the Center for the Rocky MountainWest and the Mansfield Center, at the University ofMontana. Mike Cooney, a Democrat, served in theMontana House of Representatives, in the MontanaSenate, as the Montana Secretary of State, and alsoas an unsuccessful candidate for Governor. Bothaffirmed that Montana, with its small population,enjoys political campaigns marked by person-to-person contact and a low cost of advertising com-pared to other states. They affirmed that allowingunlimited independent expenditures of corporatemoney into the Montana political process woulddrastically change campaigning by shifting theemphasis to raising funds.

¶31 Cooney, for example, ran his first state legisla-tive campaign for $750 as a “grassroots” effort thathe believed could have been derailed by an opposingexpenditure of even a couple of thousand dollars.Brown affirmed that Montana politics are more sus-ceptible to corruption than Federal campaigns, and

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that infusions of large amounts of corporate inde-pendent expenditure on just media coverage “couldaccomplish the same type of corruption of Montanapolitics as that which led to the enactment of” § 13-35-227, MCA. Cooney recounted his experience fromhis most recent campaign when he found that voterswere concerned that they “didn’t really count” in thepolitical process unless they can make a materialfinancial contribution, and that special intereststherefore hold sway. This is much the same senti-ment described by W. A. Clark to the United StatesSenate committee over a century ago, quoted above.

¶32 The State also presented the affidavit of EdwinBender of the National Institute on Money in StatePolitics. He confirmed that under Montana lawcorporations can now make unlimited contributions(in amount) for independent expenditures from theircorporate PACs to support or oppose candidates,directly to ballot measure committees, and to supportor oppose ballot measures, and can make unlimitedexpenditures on lobbyists. Corporations can makecontributions with the same limits as all donors fromtheir PACs to candidates and to party committees.Bender also affirmed the low cost of political races inMontana, in comparison to other states, with all4

legislative and statewide candidates for office raisinga total of around $7 million in 2008. In that year theaverage candidate for the Montana House raised$7,475 and the average candidate for the MontanaSenate raised $13,299. This makes it possible for

Montana is the fourth largest state in size, covering4

over 145,000 square miles, and has a population less thanone million people.

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direct political spending by corporations to signifi-cantly affect the outcome of elections.

¶33 Bender also affirmed that studies of electionspending in the United States show that the percent-age of campaign contributions from individual votersdrops sharply from 48% in states with restrictions oncorporate spending to 23% in states without. Evi-dence presented in the District Court showed that inrecent years in Montana, corporate independentspending on ballot issues has far exceeded spendingfrom other sources. He provided an extensive 2010joint study by the Hofstra University School of Law,the Brandeis Center at the NYU School of Law andthe National Institute on Money in State Politicsthat concluded that polling shows that 3 of 4 Ameri-cans believe that campaign contributions affectjudicial decisions in states where judges are elected.The New Politics of Judicial Elections 2000-2009,Charles Hall ed., Justice at Stake Campaign, 2010.

¶34 Laws that impact speech in some way must beevaluated by using the proper level of scrutiny. Thisis determined by the type of speech that the lawaffects and the type of burden that the law imposes.

Davis v. Fed. Election Comm., 554 U.S. 724, 737, 128S.Ct. 2759, 2770 (2008). Laws that place severeburdens on fully protected speech are subject tostrict scrutiny, Arizona Free Enterprise Club v.Bennett, __ U.S. __, 131 S. Ct. 2806, 2816-17 (2011),while laws that place only a minimal burden or thatapply to speech that is not fully protected receiveintermediate scrutiny. Davis, 554 U.S. at 737, 128 S.Ct. at 2771.

¶35 Montana law has long incorporated a require-

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ment of a compelling state interest in evaluatingcases involving claims that governmental actioninfringes upon constitutional rights. The MontanaConstitution, Art. 2 § 10, expressly incorporates thestandard for evaluating issues affecting the right ofindividual privacy. Montana Hum. Rights Div. v.City of Billings, 199 Mont. 434, 439-40, 649 P.2d1283, 1286 (1982); St. James Comm. Hosp. v. DistrictCourt, 2003 MT 261, ¶ 4, 317 Mont. 419, 77 P.3d534. Under Montana law the government must de-monstrate a compelling interest when it intrudes ona fundamental right, and determination of a compel-ling interest is a question of law. State v. Pastos, 269Mont. 43, 47, 887 P.2d 199, 202 (1994).

¶36 Based upon the background of § 13-35-227(1),MCA, the State of Montana, or more accurately itsvoters, clearly had a compelling interest to enact thechallenged statute in 1912. At that time the State ofMontana and its government were operating undera mere shell of legal authority, and the real socialand political power was wielded by powerful corpo-rate managers to further their own business inter-ests. The voters had more than enough of the corruptpractices and heavy-handed influence asserted bythe special interests controlling Montana’s politicalinstitutions. Bribery of public officials and unlimitedcampaign spending by the mining interests werecommonplace and well known to the public. Refer-ring to W. A. Clark, but describing the general stateof affairs in Montana, Mark Twain wrote in 1907that Clark “is said to have bought legislatures andjudges as other men buy food and raiment. By hisexample he has so excused and so sweetened corrup-

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tion that in Montana it no longer has an offensivesmell.” Mark Twain, Mark Twain in Eruption, 72(Harper & Bros. 1940).

¶37 The question then, is when in the last 99 yearsdid Montana lose the power or interest sufficient tosupport the statute, if it ever did. If the statute hasworked to preserve a degree of political and socialautonomy is the State required to throw away itsprotections because the shadowy backers of WTPseek to promote their interests? Does a state have torepeal or invalidate its murder prohibition if thehomicide rate declines? We think not. Issues ofcorporate influence, sparse population, dependenceupon agriculture and extractive resource develop-ment, location as a transportation corridor, and lowcampaign costs make Montana especially vulnerableto continued efforts of corporate control to the detri-ment of democracy and the republican form ofgovernment. Clearly Montana has unique andcompelling interests to protect through preservationof this statute.

¶38 While Montana has a clear interest in preserv-ing the integrity of its electoral process, it also hasan interest in encouraging the full participation ofthe Montana electorate. The unrefuted evidencesubmitted by the State in the District Court throughthe affidavit of Edwin Bender demonstrates thatindividual voter contributions are diminished from48% of the total raised by candidates in states wherea corporate spending ban has been in place to 23% ofthe total raised by candidates in states that permitunlimited corporate spending. The point is illustra-tive of Montana, a state where citizens generally

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support candidates with modest campaign donations.In the case of ballot issues, where corporations maymake unlimited donations, the characteristics ofdonors are markedly different from those who give tocandidates. In 2004, for example, 97 institutional do-nors gave 95% of the total money raised in ballot ini-tiative campaigns, while 760 individual donors ac-counted for the remaining 5%. Similarly, in 2008, 34institutional donors gave 95% of the total moneydonated to ballot campaigns. Moreover, unlimitedcorporate money would irrevocably change the dy-namic of local Montana political office races, whichhave historically been characterized by the low-dollar, broadbased campaigns run by Montana can-didates. At present, the individual contribution limitfor Montana House, Senate and District Court racesis $160, and for Supreme Court elections it is $310.Section 13-37-216, MCA, as adjusted as provided in(4). With the infusion of unlimited corporate moneyin support of or opposition to a targeted candidate,the average citizen candidate would be unable tocompete against the corporate-sponsored candidate,and Montana citizens, who for over 100 years havemade their modest election contributions meaning-fully count would be effectively shut out of theprocess.

¶39 Montana also has a compelling interest inprotecting and preserving its system of electedjudges. In this State, the people elect the Justices ofthe Supreme Court, the Judges of the DistrictCourts, and most lower court judges as well. Mont.Const. art. VII, § 8; § 3-2-101, MCA; and § 3-5-201,MCA. Judicial elections are nonpartisan. Section 13-

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14-111, MCA. When only an incumbent is runningfor a judicial seat, the voters can approve or rejectthe candidate. Mont. Const. art. VII, § 8 (e).

¶40 The people of the State of Montana have acontinuing and compelling interest in, and a consti-tutional right to, an independent, fair and impartialjudiciary. The State has a concomitant interest inpreserving the appearance of judicial propriety andindependence so as to maintain the public’s trustand confidence. In the present case, the free speechrights of the corporations are no more importantthan the due process rights of litigants in Montanacourts to a fair and independent judiciary, and bothare constitutionally protected. The Bill of Rights doesnot assign priorities as among the rights it guaran-tees. Neb. Press Assoc. v. Stuart, 427 U.S. 539, 561,96 S. Ct. 2791, 2803 (1976).

¶41 Clearly the impact of unlimited corporatedonations creates a dominating impact on the politi-cal process and inevitably minimizes the impact ofindividual citizens. As to candidates for politicaloffice, § 13-35-227(1), MCA, is designed to furtherthe compelling interest of the people of Montana instrong voter participation in the process. Whilecorporations have first amendment rights in politicalspeech, they do not have the vote.

¶42 The importance of and compelling interest inan independent judiciary is reflected as a matter ofpolicy in Montana’s Code of Judicial Conduct.

An independent, fair and impartial judiciaryis indispensable to our system of justice. TheUnited States legal system is based upon theprinciple that an independent, impartial, and

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competent judiciary, composed of men andwomen of integrity, will interpret and applythe law that governs our society.

Mont. Code of Judicial Conduct, Preamble. Montanaexpects its judges to act to promote “public confi-dence in the independence, integrity, and impartial-ity of the judiciary” and to “avoid impropriety andthe appearance of impropriety.” Mont. Code ofJudicial Conduct, Rule 1.2. Because it is the duty ofa judge to make decisions based upon the facts andlaw of every case, a judge must “to the greatestextent possible, be free and appear to be free frompolitical influence and political pressure.” Mont.Code of Judicial Conduct, Rule 4.2, Comment [1].“Public confidence in the independence and impar-tiality of the judiciary is eroded if judges or judicialcandidates are perceived to be subject to politicalinfluence.” Mont. Code of Judicial Conduct, Rule 4.2,Comment [3].

¶43 The United States Supreme Court has affirmedthe importance of judicial integrity and in maintain-ing public respect for the judiciary.

“Courts, in our system, elaborate principles oflaw in the course of resolving disputes. Thepower and the prerogative of a court to per-form this function rest, in the end, upon therespect accorded to its judgments. The citi-zen’s respect for judgments depends in turnupon the issuing court’s absolute probity. Ju-dicial integrity is, in consequence, a state in-terest of the highest order.” [Emphasis added.]

Caperton v. A. T. Massey Coal Co., Inc., 558 U.S. 868,___, 129 S. Ct. 2252, 2266-67 (2009) (quoting Repub-

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lican Party of Minn. v. White, 536 U.S. 765, 122 S.Ct. 2528 (2002)). The Court also recognizes theimportance of state codes of judicial conduct, which“serve to maintain the integrity of the judiciary andthe rule of law.” Caperton, 558 U.S. at ___, 129 S. Ct.at 2266. States have a “compelling interest” inpreventing judges from activities that “would under-mine actual impartiality, as well as its appearance.”Bauer v. Shepard, 620 F.3d 704, 711 (7th Cir. 2010)(upholding limits on judges acting in posts of politi-cal leadership and delivering political speeches).“The state certainly has a compelling state interestin the public’s trust and confidence in the integrityof our judicial system.” Simes v. Ark. Judicial Disci-pline and Disability Comm., 247 S.W.3d 876, 882(Ark. 2007).

¶44 Montana judicial elections would be particu-larly vulnerable to large levels of independent spend-ing, both in terms of fairness and in terms of thepublic perception of impartiality. Litigants appear-ing before a judge elected after a large expenditureof corporate funds could legitimately question whe-ther their due process rights were adversely im-pacted. In the 2008 contested election for ChiefJustice of the Montana Supreme Court, evidencepresented by the State in the District Court indi-cated that the total expenditure for media advertis-ing was about $60,000. It is clear that an entity likeMassey Coal, willing to spend even hundreds ofthousands of dollars, much less millions, on aMontana judicial election could effectively drown outall other voices. The historic Heinze-Anaconda con-flict noted above illustrates the obvious negative and

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corrupting effects of a “bought” judiciary.

¶45 Sandra Day O’Connor recently wrote in herintroduction to The New Politics of Judicial Electionsthat the “crisis of confidence in the impartiality ofthe judiciary is real and growing.” The ExecutiveSummary in that same report noted a study of thenation’s ten most costly judicial elections shows theextraordinary spending power of “super spendergroups,” which are mostly corporate funded. Monta-na is not immune from such influence and has acompelling interest in precluding corporate expendi-tures on judicial elections based upon its interest ininsuring judicial impartiality and integrity, its inter-est in preserving public confidence in the judiciaryand its interest in protecting the due process rightsof litigants.5

¶46 As discussed above, the statute has no or mini-mal impact on MSSF and Champion. Because of thisminimal impact, the State is not required to demon-strate a compelling interest to support §13-35-227(1),MCA. It is required only to demonstrate the lessexacting sufficiently important interest. For thesame reasons discussed above with regard to thecompelling state interest, the statute is clearlysupported by important governmental interests.Therefore, as to MSSF and Champion, it passesconstitutional muster as well.

¶47 Finally, § 13-35-227(1), MCA, is narrowly tai-

The State has additionally argued that it has a com-5

pelling interest in protecting the rights of dissenting share-holders who disagree with the political stance of corporatespending. We do not reach that issue because it has notbeen presented in the factual framework of this case.

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lored to meet its objectives. The statute only mini-mally affects entitles like MSSF and Champion.Even if it applies directly to WTP, WTP can stillspeak through its own political committee/PAC ashundreds of organizations in Montana do on anongoing basis. Unlike the Federal law PACs consid-ered in Citizens United, under Montana law politicalcommittees are easy to establish and easy to use tomake independent expenditures for political speech.As the Bender affidavit submitted by the State inDistrict Court confirms, corporate PACs can makeunlimited independent expenditures on behalf ofcandidates. The difference then is that under Mon-tana law the PAC has to comply with Montana’sdisclosure and reporting laws. And as noted earlier,corporations are allowed to contribute to ballot is-sues in Montana, which is a significant distinctionbecause ballot issues often have a direct impact oncorporate business activities within Montana butpresent less danger of corruptive influences thathave concerned Montana voters since 1912. The sta-tute only addresses contributions regarding candi-dates for state political office.

CONCLUSION

¶48 Citizens United does not compel a conclusionthat Montana’s law prohibiting independent politicalexpenditures by a corporation related to a candidateis unconstitutional. Rather, applying the principlesenunciated in Citizens United, it is clear that Mon-tana has a compelling interest to impose the chal-lenged rationally-tailored statutory restrictions. Wereverse the District Court and enter summary judg-ment in favor of the Montana Attorney General and

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the Commissioner of Political Practices and againstWTP, MSSF and Champion. Consequently, thecross-appeal on the issue of attorney fees is moot.

/S/ MIKE McGRATH

We concur:

/S/ BRIAN MORRIS

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT

/S/ JIM RICE

Justice Beth Baker, dissenting.

¶49 I agree with Justice Nelson that we are con-strained by Citizens United to declare § 13-35-227(1),MCA, unconstitutional to the extent it prohibitsindependent corporate expenditures for politicalspeech. In my view, the State of Montana made nomore compelling a case than that painstakingly pre-sented in the 90-page dissenting opinion of JusticeStevens and emphatically rejected by the majority inCitizens United. Though I believe Citizens Unitedrequires us to affirm the District Court, we must inany event anticipate the consequences should theCourt’s holding today be reversed. Rather than in-venting distinctions in what I fear will be a vain at-tempt to rescue Montana’s Corrupt Practices Act, Iwould construe the statute in a manner to preservewhat remains of its constitutionality and to furtherthe legislature’s underlying intent to prevent corrup-tion.

¶50 Citizens United holds unequivocally that “[n]osufficient governmental interest justifies limits onthe political speech of nonprofit or for-profit corpora-

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tions.” 130 S. Ct. at 913. Just as unequivocally, how-ever, it allows the government to impose disclaimerand disclosure requirements on political speechbecause, while such requirements “may burden theability to speak, . . . they ‘impose no ceiling oncampaign-related activities,’. . . and ‘do not preventanyone from speaking[.]’” 130 S. Ct. at 914 (citationsomitted). Plaintiffs’ counsel acknowledged duringoral argument that disclosure requirements are themeans by which to address the State’s compellinginterest in preserving the integrity of the electionprocess. And the Amicus Curiae Brief from theCenter for Competitive Politics described disclosuremandates as among the “constitutional tools” avail-able to states in the wake of Citizens United. In lightof Citizens United’s clear directive that the Statecannot prohibit corporate expenditures, our reviewand construction of the challenged statute shouldfocus on preserving disclosure requirements asapplied to such expenditures in order to protect theoverriding interest in preventing corruption.

¶51 This Court attempts to construe statutes in amanner that avoids unconstitutional interpretation.

Oberson v. USDA, 2007 MT 293, ¶ 14, 339 Mont.519, 171 P.3d 715. If a law contains both constitu-tional and unconstitutional provisions, the Courtfirst will examine the legislation to determine ifthere is a severability clause. PPL Mont., LLC v.State, 2010 MT 64, ¶ 131, 355 Mont. 402, 229 P.3d421 (citing Finke v. State, 2003 MT 48, ¶ 25, 314Mont. 314, 65 P.3d 576). In the absence of such aclause, the Court considers “whether the integrity of[the law] relies upon the unconstitutional provision

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or whether the inclusion of [the] provisions acted asinducement to its enactment.” Finke, ¶ 26. If theunconstitutional provisions are stricken, the lawmust be complete in itself and still capable of execu-tion in accord with legislative intent. Finke, ¶ 26.Though “thepresumption is against the mutilation ofa statute,” Sheehy v. Pub. Emp. Retirement Div., 262Mont. 129, 142, 864 P.2d 762, 770 (1993), if theoffending provisions may be removed without frus-trating the purpose or disrupting the integrity of thelaw, the Court will strike only those provisions of thestatute that are unconstitutional. Mont. Auto. Ass’nv. Greely, 193 Mont. 378, 380-81, 632 P.2d 300, 302(1981).

¶52 Plaintiffs seek a ruling invalidating subsection(1) of § 13-35-227, MCA. That subsection prohibits acorporation from making “a contribution or an ex-penditure in connection with a candidate or a politi-cal committee that supports or opposes a candidateor a political party.” Subsection (2) of the statute, notchallenged here, prohibits a person, candidate, orpolitical committee from accepting or receiving a cor-porate contribution. Subsection (3) of the same stat-ute allows “the establishment or administration of aseparate, segregated fund to be used for makingpolitical contributions or expenditures if the fundconsists only of voluntary contributions solicitedfrom an individual who is a shareholder, employee,or member of the corporation.”

¶53 Section 13-35-227(3), MCA, when read in thecontext of Montana’s overall campaign financescheme, expresses the legislature’s intent to providecitizens and shareholders with information about

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sources of funds used in support of candidates andballot issues. Under Citizens United, the Stateclearly may not require corporate independentexpenditures to come from a fund consisting only of“voluntary contributions” as the language of § 13-35-227(3), MCA, now provides. Subsection (1) of thestatute still could be preserved by allowing corporateexpenditures under that subsection to be made froma “separate segregated fund” as prescribed by sub-section (3), without applying the now-invalid re-quirement that “the funds consist[] only of voluntarycontributions.”

¶54 I would therefore hold that the Commissionerconstitutionally may extend Montana’s disclosureand reporting laws to independent expenditures bycorporate entities made on behalf of candidates orpolitical committees, just as the Commissioner hasdone for corporate expenditures on ballot issuecampaigns. Without such a holding, and given thatthe Montana Legislature will not meet in generalsession prior to the next election, Montana votersmay be left in the dark if § 13-35-227(1), MCA, isinvalidated by the nation’s highest court.

¶55 Applying § 13-35-227(3), MCA, in a constitu-tionally-permitted fashion to expenditures from acorporate treasury will further the government’sinterest in disclosure requirements and will notdisrupt the statute’s integrity. As noted by theMajority, only part of the original Corrupt PracticesAct survives in § 13-35-227, MCA. Opinion, ¶ 28. Thestatute has been amended numerous times in its100-year history. Subsection (3) was added in 1979.1979 Mont. Laws ch. 404, 1011. The statute’s most

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recent modification was in 2003, after federal courtsinvalidated the law’s prohibition against corporatecontributions and expenditures in ballot issue cam-paigns. Mont. Chamber of Com. v. Argenbright, 28 F.Supp. 2d 593, 600-01 (D. Mont. 1998), aff’d, 226 F.3d1049, 1052 (9th Cir. 2000). Although neither theoriginal Act nor most of its amendments have in-cluded a severability clause, applying the statute inthe fashion I suggest is consistent with the Finkeanalysis.

¶56 Through the years, while legislative history isscant, the legislature’s palpable intent was to pre-vent corruption in Montana elections. Opinion,¶¶ 22-28. Prohibition of corporate contributions hasbeen one means to achieve that goal; disclosure hasbeen another. State Senator Miles Romney, sponsorof the 1975 amendment that first introduced the banon corporate spending in ballot issue campaigns,commented in part that “everyone should know whois giving how much” and statements of contributionswould facilitate that knowledge. Mont. H. Jud.Comm., Hearing on SB 97, at 5 (Mar. 7, 1975).Through its various iterations, inducement for thelegislation has been the legislature’s desire to pre-vent corruption in elections. Absent constitutionalauthority for an outright ban on corporate spending,prohibiting application of the “voluntary contribu-tions” clause to expenditures made under subsection(1) will further, not frustrate, the accountability thatfosters prevention of corruption.

¶57 Construing the statute to preserve its require-ment for a separate segregated fund from which cor-porate expenditures are made will facilitate disclo-

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sure under requirements promulgated by the Mon-tana Commissioner of Political Practices. The Affida-vit of Dennis Unsworth, submitted by the State be-fore the District Court, described the disclosure pro-cess in place at the present time for corporate spend-ing on ballot issue measures. Unsworth stated thatindependent expenditures from a corporate treasuryto support or oppose a ballot measure must be re-ported on the Commissioner of Political Practices’Form C-4. The C-4 form is for “incidental politicalcommittees,” which are defined in the Commission-er’s rules as “a political committee that is not specifi-cally organized or maintained for the primary pur-pose of influencing elections but that may inciden-tally become a political committee by making a con-tribution or expenditure to support or oppose a can-didate and/or issue.” Admin. R. M. 4.10.327(2)(c).The only other types of political committees are“principal campaign committees” and “independentcommittees,” both of which are committees specifi-cally organized to support or oppose various candi-dates or issues. An independent committee includesa Political Action Committee. Admin. R. M. 44.10.327(2)(b)(i). Thus, the Commissioner’s rules treatcorporate treasury expenditures as expenditures by“incidental committees” because the entities do notexist for the specific purpose of supporting or oppos-ing candidates, ballot issues, or both.

¶58 The integrity and purpose of the law can besalvaged by permitting the Commissioner to apply“incidental committee” status to a separate fund ina corporation’s treasury from which election-relatedexpenditures are made. This would ensure that

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corporate contributions are on the same footing, andare given the same public daylight, as contributionsfrom individuals, political action committees, andpolitical parties. See generally, § 13-37-225, MCA;Admin. R. M. 44.10.321 – 44.10.333.

¶59 The value of disclosure in preventing corrup-tion cannot be understated. “[B]y revealing informa-tion about the contributors to and participants inpublic discourse and debate, disclosure laws helpensure that voters have the facts they need to evalu-ate the various messages competing for their atten-tion.” Human Life of Wash., Inc. v. Brumsickle, 624F.3d 990, 1005 (9th Cir. 2010). “[P]rompt disclosureof expenditures can provide shareholders and citi-zens with the information needed to hold corpora-tions and elected officials accountable for theirpositions and supporters.” Citizens United, 130S. Ct.at 916. The Ninth Circuit has recognized the impor-tance of Montana’s interest in disclosure in thecontext of ballot issue campaigns. Canyon Ferry Rd.Baptist Church of East Helena v. Unsworth, 556 F.3d1021, 1032 (2009) (citing cases and noting disclosurerequirements “may prevent ‘the wolf from masquer-ading in sheep’s clothing.’”). Regardless of the ulti-mate fate of Montana’s ban on corporate politicalexpenditures, state disclosure requirements shouldbe applied to all expenditures by corporate entities“in connection with a candidate or a political commit-tee that supports or opposes a candidate or a politicalparty.” Section 13-35-227(1), MCA.

¶60 In conclusion, I believe it is our unflaggingobligation, in keeping with the courts’ duty to safe-guard the rule of law, to honor the decisions of our

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nation’s highest Court. “Americans today accept the[United States Supreme] Court’s role as guardian ofthe law. They understand the value to the nation offollowing Court decisions, . . . even when they dis-agree with a Court decision and even when they maybe right and the decisions may be wrong.” StephenBreyer, Making Our Democracy Work: A Judge’sView 214 (Alfred A. Knopf 2010). Citizens Unitedmakes clear that a state’s outright ban on corporatepolitical expenditures violates the First Amendment.Since § 13-35-227(1), MCA, imposes just such a ban,I respectfully dissent from the Court’s decision to up-hold the statute in its entirety. I would instead up-hold only those provisions necessary to ensure inde-pendent corporate expenditures properly are re-ported and full disclosure is made to inform citizensand shareholders of the corporation’s election-relatedspending.

/S/ BETH BAKER

Justice James C. Nelson, dissenting.

¶61 I respectfully dissent from the Court’s decision.

I. INTRODUCTION

¶62 The Supreme Court could not have been more1

clear in Citizens United v. Federal Election Commis-sion, ___ U.S.___, 130 S. Ct. 876 (2010): corporationshave broad rights under the First Amendment to theUnited States Constitution to engage in politicalspeech, and corporations cannot be prohibited from

I refer to the United States Supreme Court as “the Su-1

preme Court.” References to the Montana Supreme Courtinclude “the Court,” “this Court,” “we,” and “our.”

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using general treasury funds for this purpose basedon antidistortion, anticorruption, or shareholder-protection interests. The language of the CitizensUnited majority opinion is remarkably sweeping andleaves virtually no conceivable basis for muzzling orotherwise restricting corporate political speech in theform of independent expenditures.2

¶63 As a result, the critical question presented inthe case now before us is simply this: Has the Stateof Montana identified a compelling state interest, notalready rejected by the Supreme Court, that wouldjustify the outright ban on corporate expendituresfor political speech effected by § 13-35-227(1), MCA?Having considered the matter, I believe the MontanaAttorney General has identified some very compel-ling reasons for limiting corporate expenditures inMontana’s political process. The problem, however,is that regardless of how persuasive I may think theAttorney General’s justifications are, the SupremeCourt has already rebuffed each and every one ofthem. Accordingly, as much as I would like to rule infavor of the State, I cannot in good faith do so.

¶64 The Court, on the other hand, views the matterdifferently. The Court concludes that Montana maybar corporations from using general treasury fundsfor political speech—Citizens United notwithstand-ing—because “Montana has unique and compellinginterests to protect.” Opinion, ¶ 37. What “unique”interests render Montana exempt from CitizensUnited? One searches the Court’s Opinion in vain to

2 As the Court notes, direct contributions are not at2

issue here. Opinion, ¶ 8.

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find any. The Court states that Montana has “a clearinterest in preserving the integrity of its electoralprocess” and “an interest in encouraging the fullparticipation of the Montana electorate.” Opinion,¶ 38. Yet, Montana is hardly unique in this regard.Every state in the Union is interested in preservingthe integrity of its electoral process and in encourag-ing the full participation of its electorate. The Courtasserts that Montana has interests in “protectingand preserving its system of elected judges,” “pre-serving the appearance of judicial propriety andindependence so as to maintain the public’s trustand confidence,” and “protecting the due processrights of litigants.” Opinion, ¶¶ 39, 40, 45. But surelyevery state with an elected judiciary has these sameinterests. The Court also cites “the compelling inter-est of the people of Montana in strong voter partici-pation in the process.” Opinion, ¶ 41. Again, howev-er, the people of Montana are certainly not the onlypeople in the United States with a compelling inter-est in strong voter participation.

¶65 The fact is that none of the interests identifiedby the Court are unique to Montana. What the Courtis really saying is that Montana has a unique historyand unique qualities which make Montana uniquelysusceptible to the corrupting influence of unlimitedcorporate expenditures. Indeed, the Court points toMontana’s history involving the Copper Kings—theirbribery of public officials, their manipulation of stategovernment, and their control over local judges inthe late 1800s and early 1900s. Opinion, ¶¶ 22-28.Based on this history, the Court concludes that Mon-tana voters “had a compelling interest to enact the

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challenged statute in 1912.” Opinion, ¶ 36. Further-more, the Court concludes that the dangers of corpo-rate influence and domination still exist in Montana.Opinion, ¶¶ 29-31. In fact, the Court asserts thatMontana is “especially vulnerable to continued ef-forts of corporate control to the detriment of democ-racy and the republican form of government.” Opin-ion, ¶ 37. According to the Court, this is owing toMontana’s sparse population, dependence upon agri-culture and extractive resource development, loca-tion as a transportation corridor, and low campaigncosts. Opinion, ¶ 37. Given these characteristics, theCourt opines that unlimited corporate money would“irrevocably change the dynamic of local Montanapolitical office races, which have historically beencharacterized by the low-dollar, broad-based cam-paigns run by Montana candidates.” Opinion, ¶ 38.Moreover, the infusion of unlimited corporate moneyin support of or opposition to a targeted candidatewould “minimize[ ] the impact of individual citizens”in the political process and leave the average citizen“effectively shut out of the process.” Opinion, ¶¶ 38,41. Accordingly, the Court holds that Montana mayflat-out prohibit direct political spending by corpora-tions.

¶66 Respectfully, I cannot agree that this “Montanais unique” rationale is consistent with CitizensUnited. And I seriously doubt this rationale is goingto prevail in the Supreme Court when this case isappealed, as it almost certainly will be. For onething, a fair reading of the Citizens United majorityopinion, coupled with a fair reading of the separateconcurring and dissenting opinions, leads inescap-

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ably to the conclusion that every one of the AttorneyGeneral’s arguments—and this Court’s rationalesadopting those arguments—was argued, considered,and then flatly rejected by the Supreme Court.Moreover, even accepting the propositions that Mon-tana experienced an egregious period of corporatedomination and political corruption at the turn of the20th century, that Montana citizens understandablybecame fed up with the heavy-handed influence andcorrupt practices of special interests at the time, andthat Montana to this day remains especially vulnera-ble to continued efforts of corporate control, what theCourt and the Attorney General have failed torecognize is this fundamental point: a ban on corpo-rate speech is not a constitutionally permissibleremedy for these problems. This should be abun-dantly clear from the following passage in CitizensUnited:

If elected officials succumb to improper influ-ences from independent expenditures; if theysurrender their best judgment; and if they putexpediency before principle, then surely thereis cause for concern. We must give weight toattempts by [the legislative branch] to seek todispel either the appearance or the reality ofthese influences. The remedies enacted bylaw, however, must comply with the FirstAmendment; and, it is our law and our tradi-tion that more speech, not less, is the govern-ing rule. An outright ban on corporate politicalspeech during the critical preelection period isnot a permissible remedy.

130 S. Ct. at 911 (emphases added).

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¶67 The federal law struck down in Citizens United(2 U.S.C. § 441b, as amended by § 203 of the Biparti-san Campaign Reform Act of 2002) prohibited cor-porations from expressly advocating the election ordefeat of candidates and from broadcasting election-eering communications within 30 days of a primaryelection and 60 days of a general election. CitizensUnited, 130 S. Ct. at 887, 897. The Montana law atissue here is even more categorical, prohibitingcorporations from ever using general treasury fundsfor political advocacy. Section 13-35-227(1), MCA (“Acorporation may not make a contribution or anexpenditure in connection with a candidate or apolitical committee that supports or opposes a can-didate or a political party.”). If the federal law is fa-cially unconstitutional, as the Supreme Court held,then I cannot envision any possibility that the Mon-tana law will survive the predictable appeal of thisCourt’s decision.

¶68 Unquestionably, Montana has its own uniquehistory. No doubt Montana also has compelling in-terests in preserving the integrity of its electoralprocess and in encouraging the full participation ofits electorate. And Montana may indeed be more vul-nerable than other states to corporate domination ofthe political process. But the notion argued by theAttorney General and adopted by the Court—thatthese characteristics entitle Montana to a special “nopeeing” zone in the First Amendment swimmingpool—is simply untenable under Citizens United.

¶69 Admittedly, I have never had to write a morefrustrating dissent. I agree, at least in principle,with much of the Court’s discussion and with the

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arguments of the Attorney General. More to thepoint, I thoroughly disagree with the SupremeCourt’s decision in Citizens United. I agree, rather,with the eloquent and, in my view, better-reasoneddissent of Justice Stevens. As a result, I find myselfin the distasteful position of having to defend theapplicability of a controlling precedent with which Iprofoundly disagree.3

¶70 That said, this case is ultimately not about myagreement or disagreement with the AttorneyGeneral or our satisfaction or dissatisfaction withthe Citizens United decision. Whether we agree withthe Supreme Court’s interpretation of the FirstAmendment is irrelevant. In accordance with ourfederal system of government, our obligations hereare to acknowledge that the Supreme Court’s inter-pretation of the United States Constitution is, forbetter or for worse, binding on this Court and on theofficers of this state, and to apply the law faithful tothe Supreme Court’s ruling.

¶71 Granted, there are some in the legislative andexecutive branches of government who would call—and, in fact, have called—for Montana to thumb itsnose at the federal government, to disregard federallaw, and to boldly ignore the Supremacy Clause(U.S. Const., art. VI, cl. 2). See e.g. Mike Dennison,Bills Test State’s Power to Nullify Fed Laws, HelenaIndependent Record (Feb. 13, 2011). Regardless ofthose views, however, all elected officials in

The task is all the more distasteful in light of Western3

Tradition Partnership’s questionable tactics and blatanthypocrisy. See Opinion, ¶¶ 7, 9, 19; Br. of Appellants 10-11,22-23 (Apr. 15, 2011).

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Montana—legislative, executive, and judicial—aresworn to “support, protect and defend the constitu-tion of the United States.” Mont. Const. art. III, § 3.Obviously, this means in accordance with the Su-preme Court’s interpretations of the United StatesConstitution. Thus, when the highest court in thecountry has spoken clearly on a matter of federalconstitutional law, as it did in Citizens United, thehighest court in Montana—this Court—is not at li-berty to disregard or parse that decision in order touphold a state law that, while politically popular, isclearly at odds with the Supreme Court’s decision.This is the rule of law and is part and parcel of everyjudge’s and justice’s oath of office to “support, protectand defend the constitution of the United States.” Inmy view, this Court’s decision today fails to do so.

¶72 The Supreme Court has emphatically rejectedthe notion that corporate political speech may berestricted based on interests in protecting againstpolitical and campaign corruption, safeguarding theability of individual citizens to compete and partici-pate in the political process, and preserving judicialintegrity and impartiality. It makes no sense whatso-ever that a state may rely on these very same inter-ests—despite their rejection by the Supreme Court—as grounds for muzzling corporate speech simplybecause the state’s history, demographics, economics,and elections are in some way “unique.” It alsomakes no sense that, on one hand, the First Amend-ment protects corporate expenditures for politicalspeech at the federal level and, apparently, through-

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out the rest of the country but that, on the other4

hand, this First Amendment protection magicallyevaporates at Montana’s borders because of a lawadopted 100 years ago to address a very fact-specificsituation. See Larry Howell, Once Upon a Time inthe West: Citizens United, Caperton, and the War ofthe Copper Kings, at 6-16 (under the heading “TheMontana Situation”) (available at http://mtlr. org).Indeed, if the Supreme Court countenances thisCourt’s approach of restricting corporate politicalspeech rights based on population density, the exis-tence of “mineral wealth,” a history of “low-dollar,broad-based campaigns,” and past experience with“heavy-handed influence” asserted by corporations,then there shortly will be nothing left of CitizensUnited at the state level. Due to its unpopularity, theSupreme Court’s decision will be “state-lawed” intooblivion. While this would be a good thing in theview of many, my point here is that the SupremeCourt clearly did not intend, with the broad, sweep-ing, and unqualified language it used, to allow theholding of Citizens United to be circumvented

See Robert Barnes, Citizens United Decision Reverber-4

ates in Courts across Country, Washington Post (May 22,2011) (“The [Supreme Court’s] January 2010 decision free-ing corporations and unions to spend whatever they like forand against candidates wiped out laws in 24 states banningsuch spending. Only Montana still wages a lonely courtbattle to maintain the ban.”); Natl. Conf. of State Legisla-tures, Citizens United and the States, http://www.ncsl.org/default.aspx?tabid=19607 (updated Jan. 4, 2011) (notingthat “[i]n 17 of the 24 states with laws affected by theCitizens United decision, legislation has been introduced toamend the law,” and listing the bills).

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through “uniqueness” stratagems.

¶73 Therefore, and with all due respect to my col-leagues, I believe this Court is simply wrong in itsrefusal to affirm the District Court. Like it or not,Citizens United is the law of the land as regardscorporate political speech. There is no “Montana ex-ception.” The proof of the Court’s error is found in acomparison of the rationales provided in the Court’sOpinion with the statements by the Supreme Courtrejecting those rationales. I begin with an analysis ofthe Citizens United decision.

II. CITIZENS UNITED

¶74 A significant portion of the Citizens United de-cision is devoted to the threshold question whetherthe Supreme Court should even be deciding the con-stitutional matters that it ultimately does decide. In-deed, the five Justices in the majority—Justice Ken-nedy joined by Chief Justice Roberts, Justice Scalia,Justice Thomas, and Justice Alito—consumed nu-merous pages attempting to explain why they were(1) addressing a claim that Citizens United had ex-pressly dismissed in the district court (its facialchallenge to the law’s constitutionality), (2) decidingthe case on grounds that arguably were broader thannecessary to resolve Citizens United’s claim, and (3)overruling prior precedents notwithstanding thedoctrine of stare decisis. See Citizens United, 130 S.Ct. at 888-96, 911-13 (majority opinion); 130 S. Ct. at917-25 (Roberts, C.J., & Alito, J., concurring). Withregard to these issues, the dissent—Justice Stevensjoined by Justice Ginsburg, Justice Breyer, andJustice Sotomayor—accused the majority of simplybeing “unhappywith the limited nature of the case

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before us,” of having “disdain” for the prior prece-dents, and thus of “chang[ing] the case to give them-selves an opportunity to change the law.” Citizens5

United, 130 S. Ct. at 932, 938. The dissent alsocriticized the majority’s determination to invalidatethe statute on facial grounds, not only because thisapproach is “‘contrary to the fundamental principleof judicial restraint’” and has the secondary effect of“implicitly striking down a great many state laws aswell,” but also because the record before the Su-preme Court was “nonexistent.” Citizens United, 130S. Ct. at 932-33. Whereas Congress had crafted theBipartisan Campaign Reform Act of 2002 (BCRA) “inresponse to a virtual mountain of research on thecorruption that previous legislation had failed toavert,” the majority “now negates Congress’ effortswithout a shred of evidence on how § 203 or its state-law counterparts have been affecting any entityother than Citizens United.” Citizens United, 130 S.Ct. at 933. The dissent argued that “it is the heightof recklessness to dismiss Congress’ years of biparti-san deliberation and its reasoned judgment on thisbasis, without first confirming that the statute inquestion was intended to be, or will function as, a

restraint on electoral competition.” Citizens United,130 S. Ct. at 969. Finally, the dissent argued that

Unfortunately, remaking cases is not a phenomenon5

exclusive to the Supreme Court. See e.g. Western Sec. Bankand Glacier Bancorp, Inc. v. Eide Bailly LLP, 2010 MT 291,¶¶ 71-82, 359 Mont. 34, 249 P.3d 35 (Nelson, J., concurringin part and dissenting in part); PacifiCorp v. State, 2011MT 93, ¶¶ 65-67, 360 Mont. 259, 253 P.3d 847 (Rice &Nelson, JJ., concurring).

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the case could have been decided on various nar-rower grounds, Citizens United, 130 S. Ct. at 936-38,and that the majority had failed to give properdeference to the doctrine of stare decisis, 130 S. Ct.at 938-42. On this latter point, the dissent observedthat

[s]tare decisis protects not only personal rightsinvolving property or contract but also theability of the elected branches to shape theirlaws in an effective and coherent fashion.Today’s decision takes away a power that wehave long permitted these branches to exer-cise. State legislatures have relied on theirauthority to regulate corporate electioneering,confirmed in [Austin v. Mich. Chamber ofCommerce, 494 U.S. 652, 110 S. Ct. 1391(1990)], for more than a century. The FederalCongress has relied on this authority for acomparable stretch of time, and it specificallyrelied on Austin throughout the years it spentdeveloping and debating BCRA. The total re-cord it compiled was 100,000 pages long. Pul-ling out the rug beneath Congress after af-firming the constitutionality of § 203 six yearsago shows great disrespect for a coequalbranch.

Citizens United, 130 S. Ct. at 940 (emphasis in origi-nal, footnotes omitted).6

In addition to the foregoing criticisms by the dissent,6

I note that the Citizens United majority’s approach has alsobeen criticized for flouting the very rhetoric that conserva-tives have espoused for decades against so-called “judicialactivism.” See e.g. Erwin Chemerinsky, Op., Conservatives

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¶75 While I believe the Citizens United dissentmakes a persuasive argument that the majority neednot and should not have rendered such a broad con-stitutional holding, the fact remains that the major-ity did so, striking down the federal law as faciallyinvalid. Thus, my focus hereafter is on what themajority specifically held regarding corporate inde-pendent expenditures on political speech. I approachthis in step-by-step fashion.

A. The First Amendment Applies toPolitical Speech by Corporations

¶76 The First Amendment provides that “Congressshall make no law . . . abridging the freedom ofspeech.” This protection extends to corporations andto the context of political speech. Citizens United,130 S. Ct. at 899, 900. Political speech does not loseFirst Amendment protection simply because itssource is a corporation. Citizens United, 130 S. Ct. at900. The identity of the speaker is not decisive indetermining whether speech is protected; corpora-tions and other associations, like individuals, con-tribute to the discussion, debate, and the dissemina-tion of information and ideas that the First Amend-

Embrace Judicial Activism in Campaign Finance Ruling,L.A. Times (Jan. 22, 2010); see also Reza Dibadj, CitizensUnited as Corporate Law Narrative, 16 Nexus 39, 40-48(2010-2011) (noting “technical concerns” and “constitutionalproblems” with the majority’s approach); J. Harvie Wil-kinson III, Of Guns, Abortions, and the Unraveling Rule ofLaw, 95 Va. L. Rev. 253 (2009) (criticizing the same five-Justice majority for not adhering to a conservative judicialmethodology in Dist. of Columbia v. Heller, 554 U.S. 570,128 S. Ct. 2783 (2008)).

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ment seeks to foster. Citizens United, 130 S. Ct. at900. The Supreme Court “has thus rejected the argu-ment that political speech of corporations or otherassociations should be treated differently under theFirst Amendment simply because such associationsare not ‘natural persons.’” Citizens United, 130 S. Ct.at 900.

B. Section 441b BurdensCorporate Political Speech

¶77 The law at issue (2 U.S.C. § 441b, as amendedby § 203 of the BCRA) prohibits corporations andunions from using general treasury funds to makeindependent expenditures that expressly advocatethe election or defeat of candidates. It also prohibitsthe broadcast of electioneering communications with-in 30 days of a primary election and 60 days of a gen-eral election. Citizens United, 130 S. Ct. at 887, 897.This prohibition on corporate independent expendi-tures is a ban on speech. Citizens United, 130 S. Ct.at 898. It is true that corporations and unions mayestablish a “separate segregated fund” (known as apolitical action committee or PAC) for purposes ofexpress advocacy or electioneering communications.The moneys received by the PAC are limited todonations from stockholders and employees of thecorporation or, in the case of unions, members of theunion. Citizens United, 130 S. Ct. at 887-88. Never-theless, § 441b “is a ban on corporate speech notwithstanding the fact that a PAC created by a cor-poration can still speak.” Citizens United, 130 S. Ct.at 897. This is because “[a] PAC is a separate associ-ation from the corporation. So the PAC exemptionfrom § 441b’s expenditure ban does not allow corpo-

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rations to speak.” Citizens United, 130 S. Ct. at 897(citation omitted). Furthermore, “[e]ven if a PACcould somehow allow a corporation to speak—and itdoes not—the option to form PACs does not alleviatethe First Amendment problems with § 441b. PACsare burdensome alternatives; they are expensive toadminister and subject to extensive regulations.”Citizens United, 130 S. Ct. at 897.

C. Standard of Review: Strict Scrutiny

¶78 “While it might be maintained that politicalspeech simply cannot be banned or restricted as acategorical matter,” the following standard “providesa sufficient framework for protecting the relevantFirst Amendment interests in this case.” CitizensUnited, 130 S. Ct. at 898. Laws that burden politicalspeech are subject to strict scrutiny, which requiresthe government to prove that the restriction furthersa compelling interest and is narrowly tailored toachieve that interest. Citizens United, 130 S. Ct. at898.

D. The Governmental-Function Interest

¶79 The First Amendment prohibits restrictionsthat distinguish among different speakers, allowing

speech by some but not others. Citizens United, 130S. Ct. at 898. Hence, the government “may commit aconstitutional wrong when by law it identifies cer-tain preferred speakers.” Citizens United, 130 S. Ct.at 899. The Supreme Court has upheld a narrowclass of speech restrictions that operate to the dis-advantage of certain persons, but these rulings werebased on “the proposition that there are certain go-vernmental functions that cannot operate withoutsome restrictions on particular kinds of speech”—

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e.g., the function of public school education, the pe-nological objectives of the corrections system, andthe capacity of the government to discharge its mili-tary responsibilities. Citizens United, 130 S. Ct. at899. This interest is not applicable here because thecorporate independent expenditures at issue wouldnot interfere with governmental functions. Quite thecontrary, “it is inherent in the nature of the politicalprocess that voters must be free to obtain informa-tion from diverse sources in order to determine howto cast their votes.” Citizens United, 130 S. Ct. at899.

E. The Antidistortion Interest

¶80 The Supreme Court in Austin v. Mich. Cham-ber of Commerce, 494 U.S. 652, 110 S. Ct. 1391(1990), found a compelling governmental interest inpreventing “‘the corrosive and distorting effects ofimmense aggregations of wealth that are accumu-lated with the help of the corporate form and thathave little or no correlation to the public’s supportfor the corporation’s political ideas.’” Citizens United,130 S. Ct. at 903 (quoting Austin, 494 U.S. at 660,110 S. Ct. at 1397). The concerns in this regard arethat corporations can “use resources amassed in theeconomic marketplace to obtain an unfair advantagein the political marketplace,” and that corporatewealth can “dominat[e] . . . the political process” and“unfairly influence elections” when it is deployed inthe form of independent expenditures. Austin, 494U.S. at 659, 660, 110 S. Ct. at 1397, 1398 (internalquotation marks omitted).

¶81 The problem with this “antidistortion ratio-nale,” however, is that it is inconsistent with the

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First Amendment. Citizens United, 130 S. Ct. at 904-08. For one thing, “‘the concept that government mayrestrict the speech of some elements of our society inorder to enhance the relative voice of others is whollyforeign to the First Amendment.’”Citizens United,130 S. Ct. at 904 (alteration omitted) (quoting Buck-ley v. Valeo, 424 U.S. 1, 48-49, 96 S. Ct. 612, 649(1976) (per curiam)). Buckley rejected the premisethat the Government has an interest “in equalizingthe relative ability of individuals and groups to in-fluence the outcome of elections.” Buckley was speci-fic in stating that “the skyrocketing cost of politicalcampaigns” could not sustain the governmental pro-hibition. The First Amendment’s protections do notdepend on the speaker’s “financial ability to engagein public discussion.” Citizens United, 130 S. Ct. at904 (citations omitted).

¶82 Additionally, the antidistortion rationale inter-feres with the “open marketplace” of ideas protectedby the First Amendment by permitting the govern-ment to ban the political speech of millions of associ-ations of citizens. Citizens United, 130 S. Ct. at 906-07. Most of these are small corporations withoutlarge amounts of wealth—a fact which belies the ar-gument that the statute at issue is justified on theground that it prevents the “distorting effects of im-mense aggregations of wealth.” Citizens United, 130S. Ct. at 907. In any event, political speech is indis-pensable to decision-making in a democracy, and thisis no less true because the speech comes from a cor-poration rather than an individual. Citizens United,130 S. Ct. at 904. “Corporations, like individuals, donot have monolithic views. On certain topics corpora-

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tions may possess valuable expertise, leaving themthe best equipped to point out errors or fallacies inspeech of all sorts, including the speech of candidatesand elected officials.” Citizens United, 130 S. Ct. at912. By suppressing the speech of manifold corpora-tions, both for-profit and nonprofit, the governmentprevents their voices and viewpoints from reachingthe public and advising voters on which persons orentities are hostile to their interests. Citizens United,130 S. Ct. at 907. In so doing, the government muf-fles the voices that best represent the most signifi-cant segments of the economy and deprives the elec-torate of information, knowledge, and opinion vitalto its function. Citizens United, 130 S. Ct. at 907.When the government seeks to use its power “tocommand where a person may get his or her infor-mation or what distrusted source he or she may nothear, it uses censorship to control thought. This isunlawful. The First Amendment confirms the free-dom to think for ourselves.” Citizens United, 130 S.Ct. at 908.

F. The Anticorruption Interest

¶83 The Government argues that corporate politicalspeech may be banned in order to prevent corruptionor its appearance. The Buckley Court found thisinterest sufficiently important to allow limits oncontributions. Citizens United, 130 S. Ct. at 908(citing Buckley, 424 U.S. at 25, 96 S. Ct. at 638). Butwhen the Buckley Court examined a ban on inde-pendent expenditures, it found “that the governmen-tal interest in preventing corruption and the appear-ance of corruption is inadequate to justify [the ban].”Buckley, 424 U.S. at 45, 96 S. Ct. at 647. For the

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reasons which follow, that holding is reaffirmedhere. Citizens United, 130 S. Ct. at 908-11.

¶84 “‘The hallmark of corruption is the financialquid pro quo: dollars for political favors.’” CitizensUnited, 130 S. Ct. at 910 (quoting Fed. ElectionCommn. v. Natl. Conservative Political ActionComm., 470 U.S. 480, 497, 105 S. Ct. 1459, 1468(1985)). “[C]ontribution limits, . . . unlike limits onindependent expenditures, have been an acceptedmeans to prevent quid pro quo corruption.” CitizensUnited, 130 S. Ct. at 909. Not only can large directcontributions be given to secure a political quid proquo, the scope of such pernicious practices can neverbe reliably ascertained. Citizens United, 130 S. Ct. at908 (citing Buckley, 424 U.S. at 26-27, 96 S. Ct. at638). Thus, limits on direct contributions are permis-sible to ensure against the reality or appearance ofquid pro quo corruption. Citizens United, 130 S. Ct.at 908.

¶85 Independent expenditures, in contrast, have asubstantially diminished potential for abuse. Citi-zens United, 130 S. Ct. at 908. By definition, an inde-pendent expenditure is political speech presented tothe electorate that is not coordinated with a candi-date. Citizens United, 130 S. Ct. at 910. “‘The ab-sence of prearrangement and coordination of anexpenditure with the candidate or his agent not onlyundermines the value of the expenditure to thecandidate, but also alleviates the danger that expen-ditures will be given as a quid pro quo for impropercommitments from the candidate.’” Citizens United,130 S. Ct. at 908 (quoting Buckley, 424 U.S. at 47, 96S. Ct. at 648). Limits on independent expenditures,

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therefore, “have a chilling effect extending well be-yond the Government’s interest in preventing quidpro quo corruption.” Citizens United, 130 S. Ct. at908.

¶86 “When Buckley identified a sufficiently impor-tant governmental interest in preventing corruptionor the appearance of corruption, that interest waslimited to quid pro quo corruption.” Citizens United,130 S. Ct. at 909. Two years later, the SupremeCourt purported to leave open the possibility thatcorporate independent expenditures could be shownto cause corruption. See First Natl. Bank of Boston v.Bellotti, 435 U.S. 765, 788 n. 26, 98 S. Ct. 1407, 1422n. 26 (1978). However, “we now conclude that inde-pendent expenditures, including those made by cor-porations, do not give rise to corruption or theappearance of corruption.” Citizens United, 130 S.Ct. at 909.

¶87 The fact that speakers may have influence overor access to elected officials does not mean that theseofficials are corrupt. Citizens United, 130 S. Ct. at910.

“Favoritism and influence are not . . . avoid-able in representative politics. It is in thenature of an elected representative to favorcertain policies, and, by necessary corollary, tofavor the voters and contributors who supportthose policies. It is well understood that asubstantial and legitimate reason, if not theonly reason, to cast a vote for, or to make acontribution to, one candidate over another isthat the candidate will respond by producingthose political outcomes the supporter favors.

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Democracy is premised on responsiveness.”

Citizens United, 130 S. Ct. at 910 (ellipsis in origi-nal) (quoting McConnell v. Fed. Election Commn.,540 U.S. 93, 297, 124 S. Ct. 619, 748 (2003) (Ken-nedy, J., Rehnquist,C.J., & Scalia, J., dissenting)).The appearance of influence or access, furthermore,will not cause the electorate to lose faith in ourdemocracy. As noted, an independent expenditure is,by definition, political speech presented to theelectorate that is not coordinated with a candidate.The fact that a corporation, or any other speaker, iswilling to spend money to try to persuade voterspresupposes that the people have the ultimateinfluence over elected officials. This is inconsistentwith any suggestion that the electorate will refuse totake part in democratic governance because ofadditional political speech made by a corporation orany other speaker. Citizens United, 130 S. Ct. at 910.¶88 In sum, the hallmark of corruption is thefinancial quid pro quo: dollars for political favors.Citizens United, 130 S. Ct. at 910. The governmenthas a sufficiently important interest in preventingquid pro quo corruption or the appearance of it.Citizens United, 130 S. Ct. at 909. Indeed, a quid proquo arrangement would be covered by bribery laws.Citizens United, 130 S. Ct. at 908. Independentexpenditures, however, “do not lead to, or create theappearance of, quid pro quo corruption. In fact, thereis only scant evidence that independent expenditureseven ingratiate. Ingratiation and access, in anyevent, are not corruption.” Citizens United, 130 S. Ct.at 910 (citation omitted). Therefore, “independentexpenditures, including those made by corporations,

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do not give rise to corruption or the appearance ofcorruption.” Citizens United, 130 S. Ct. at 909. Ofcourse, if elected officials succumb to improper in-fluences from independent expenditures, surrendertheir best judgment, and put expediency before prin-ciple, then surely there is cause for concern; but inattempting to dispel either the appearance or thereality of these influences, “[a]n outright ban on cor-porate political speech . . . is not a permissible rem-edy.” Citizens United, 130 S. Ct. at 911.

G. The Shareholder-Protection Interest

¶89 The Government argues that corporate inde-pendent expenditures can be limited in the interestof protecting dissenting shareholders from beingcompelled to fund corporate political speech withwhich they do not agree. The First Amendment, how-ever, does not allow the government to restrict cor-porate speech based on a shareholder’s disagreementwith the political views of the corporation. CitizensUnited, 130 S. Ct. at 911. There is, furthermore,little evidence of abuse that cannot be corrected byshareholders through the procedures of corporate de-mocracy. Citizens United, 130 S. Ct. at 911.

H. Foreign Influence

¶90 “We need not reach the question whether theGovernment has a compelling interest in preventingforeign individuals or associations from influencingour Nation’s political process.” Citizens United, 130S. Ct. at 911.

I. Conclusion

¶91 Based on the foregoing, the Supreme Courtoverruled its decision in Austin. “We return to the

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principle established in Buckley and Bellotti that theGovernment may not suppress political speech onthe basis of the speaker’s corporate identity. Nosufficient governmental interest justifies limits on thepolitical speech of nonprofit or for-profit corpora-tions.” Citizens United, 130 S. Ct. at 913 (emphasisadded). Accordingly, the Supreme Court held thatBCRA § 203’s restriction on electioneering communi-cations and 2 U.S.C. § 441b’s prohibition on the useof corporate treasury funds for express advocacywere both invalid. Citizens United, 130 S. Ct. at 913.The Supreme Court (with only Justice Thomas dis-senting) then went on to uphold BCRA’s disclaimerand disclosure provisions against an as-applied con-stitutional challenge. Citizens United, 130 S. Ct. at913-16.

III. THE PLAINTIFFS’ CLAIMS

¶92 Before examining this Court’s rationalesupholding § 13-35-227(1), MCA, it is necessary to7

dispel some misconceptions regarding the plaintiffs’claims. ¶93 First, the Court asserts that neitherGary Marbut, the founder of Montana ShootingSports Association (MSSA), nor Kenneth Champion,the sole shareholder of Champion Painting, Inc., hasdemonstrated “any material way” in which Montanalaw has hindered or censored their political activityor speech. Opinion, ¶ 17. Of course, Marbut andChampion are not parties to this lawsuit, and theirspeech rights are not at issue here. Hence, whetherMarbut and Champion, as individuals, have been

I occasionally refer to § 13-35-227, MCA, hereafter as7

“Section 227” or “§ 227.”

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hindered or censored in their political activity orspeech is totally irrelevant. The question is whetherthe speech rights of MSSA and Champion Painting,as incorporated entities, have been infringed.

¶94 Second, the Court asserts that MSSA has failedto demonstrate that its speech has been impaired by§ 227 because Montana law places no restriction onMSSA to spend its members’ dues on political advo-cacy. Opinion, ¶ 17. As support for this, the Courtcites the affidavit of former Commissioner of PoliticalPractices Dennis Unsworth. What Unsworth specifi-cally says, however, is this: “[MSSA] has been andcontinues to be free to spend its member dues anddonations from its treasury regardless of its corpo-rate status, as long as it complies with the filingrequirements described above and meets the criteriafor a voluntary association.” (Emphasis added.) Theaffidavit of Mary Baker, program supervisor in theOffice of the Commissioner of Political Practices,likewise states that “there is nothing in Montana’scampaign finance laws that would prohibit [MSSA]from registering itself as a committee and making in-dependent expenditures from its corporate treasury,

if it meets our office’s criteria for a voluntary associa-tion.” (Emphasis added.) According to Unsworth’s8

An exemption for “voluntary associations” is not codi-8

fied in the statute. Rather, it is the Commissioner’s “policy”to except such associations from § 227(1). Prior to 2003, anarrow category of nonprofit corporations was statutorilypermitted to make contributions to or expenditures inconnection with ballot issues, notwithstanding the generalprohibition on corporate contributions and expenditures.See § 13-35-227(1), (4), MCA (2001). But in light of Mont.

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affidavit, those criteria are as follows:

A voluntary association that incorporatescan spend its members’ dues and donations oncampaign contributions and independent ex-penditures from its treasury, if it: (1) is formedfor the express purpos eo f promoting politicalideas, and could not engage in business activi-ties; (2) has no shareholders or other personsaffiliated so as to have a claim on its assets orearnings; (3) is not established by a businesscorporation, and does not accept contributionsfrom business corporations.

¶95 Contrary to the Court’s implication, there hasbeen no determination in this case that MSSA in factmeets the criteria of a “voluntary association.” Andone of the exhibits attached to Unsworth’s affidavitindicates that MSSA does not satisfy the criteria.The exhibit is an “advisory opinion” issued by formerCommissioner Linda Vaughey on September 25,2003, in which she addresses whether the nonprofitcorporation People for Responsible Government(PRG) may engage in political activities in connec-tion with candidates for public office. Vaughey startswith the premise that § 227 “appears on its face toprohibit all corporations, including nonprofit corpo-rations, from making contributions or expendituresin connection with candidates, other than throughseparate, segregated funds.” Vaughey then observes

Chamber of Commerce v. Argenbright, 226 F.3d 1049 (9thCir. 2000), which held that corporations cannot be prohib-ited from making direct corporate expenditures in ballotinitiative campaigns, the 2003 Legislature amended thestatute accordingly. See Laws of Montana, 2003, ch. 59.

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that, based on Fed. Election Commn. v. Mass. Citi-zens for Life, Inc., 479 U.S. 238, 263-64, 107 S. Ct.616, 631 (1986), there is an exception for nonprofitcorporations which meet the three criteria listedabove. Vaughey finally determines that PRG doesnot meet the third criterion because

[n]othing in the Articles of Incorporation, theBylaws, or the other information you haveprovided confirms that PRG was not estab-lished by a business corporation or a labororganization. Moreover, you have not providedany information establishing that PRG doesnot directly or indirectly accept donations orcontributions of anything of value from busi-ness corporations or labor organizations.[Emphasis added.]

Likewise here, there is no evidence in the re-cord—not in Marbut’s affidavit, in MSSA’s Articlesof Incorporation (attached to Marbut’s affidavit), inUnsworth’s affidavit, in Baker’s affidavit, or in anyother document—establishing that MSSA “does notdirectly or indirectly accept donations or contribu-tions of anything of value from business corporationsor labor organizations.” Hence, MSSA does not qua-lify as a “voluntary association” under the Commis-sioner’s definition, and MSSA is not allowed to useits general treasury funds to make independent ex-penditures in connection with candidate elections.MSSA states in the First Amended Complaint thatit wishes to “use its corporate funds to directly sup-port or oppose candidates.” In light of the foregoingdiscussion, § 227(1) bars MSSA from doing so. TheCourt is flat wrong, therefore, in stating that “the

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statute has no or minimal impact” on MSSA. Opin-ion, ¶ 46.

¶96 Third, the Court likewise misstates the impacton Champion Painting. For one thing, the Courtagain seems to be improperly focused on Champion’sspeech rights, which are not at issue, rather thanChampion Painting’s speech rights, which are atissue. Opinion, ¶ 18. The Court also suggests thatthe only reason Champion Painting is participatingin this lawsuit is so that its shareholder (Champion)can be allowed to make “candidate endorsement[s]”using the company name. Opinion, ¶ 18. Finally, theCourt asserts that because Champion, as sole share-holder, can simply establish a PAC to advocate forChampion Painting’s interests and expend fundsthat he will decide to contribute, Opinion, ¶ 18, “thestatute has no or minimal impact on . . . Champion,”Opinion, ¶ 46. The Court is wrong on all counts.

¶97 According to the First Amended Complaint,

Champion Painting intends to spend corporatefunds to educate the citizens of Montana andBozeman about political candidates and ballotissues that will either positively or negativelyimpact Montana’s small businesses, andChampion Painting intends to publicly sup-port or oppose candidates and issues relatingto Montana’s small businesses. The corporatefunds will be spent to purchase TV spots andradio advertisements, and to create and dis-tribute brochures and fliers . . . .

Champion’s affidavit is to the same effect: “In addi-tion to being politically active as an individual, Iwould like for Champion Painting to be politically

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active. . . . Since Champion Painting is a smallbusiness, its voice will be more effective than myvoice when supporting or opposing candidates whomay have an impact on small businesses.” It isapparent, then, that Champion Painting’s claim isabout the corporation’s ability to speak, not itsshareholder’s ability to speak. And as the Courtconcedes, § 227(1) forbids the expenditure of Cham-pion Painting’s corporate funds to support or opposecandidates. Opinion, ¶ 18. Nothing in § 227 exemptscorporations held by a sole shareholder. As for theCourt’s theory that Champion Painting could speakthrough a PAC, Opinion, ¶ 18, the Supreme Courtrejected this approach as discussed above and notedagain below.

IV. COMPARISON

¶98 I now turn to a comparison of the rationalesprovided in the Court’s Opinion with the statementsby the Supreme Court rejecting those rationales.Again, the specific issue is the constitutionality of§ 227(1)’s prohibition on corporate expenditures inconnection with a candidate or a political committeethat supports or opposes a candidate or a politicalparty. The disclosure laws, the prohibition on directcorporate contributions, and the Corrupt PracticesAct as a whole have not been challenged. Opinion,¶¶ 2, 8.

A. The Political Committee Alternative

¶99 Section 227(1) states that “[a] corporation maynot make a contribution or an expenditure in connec-tion with a candidate or a political committee thatsupports or opposes a candidate or a political party.”Section 227(3), however, provides that “[t]his section

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does not prohibit the establishment or administra-tion of a separate, segregated fund [known as a poli-tical committee or PAC] to be used for making poli-tical contributions or expenditures if the fund con-sists only of voluntary contributions solicited from anindividual who is a shareholder, employee, or mem-ber of the corporation.” See Opinion, ¶ 4.

¶100 The Court asserts that, in Montana, politicalcommittees are “easy to establish,” “easy to use,” andan “effective alternative to direct corporate spendingfor engaging in political speech.” Opinion, ¶¶ 21, 47.The Supreme Court, however, stated: “A PAC is a se-parate association from the corporation. So the PACexemption from [the law’s] expenditure ban does notallow corporations to speak.” Citizens United, 130 S.Ct. at 897 (citation omitted). Moreover, “[e]ven if aPAC could somehow allow a corporation to speak—and it does not—the option to form PACs does notalleviate the First Amendment problems.” CitizensUnited, 130 S. Ct. at 897 (emphasis added).

¶101 The Court ignores the Supreme Court’s hold-ing that a PAC is “separate” from the corporationand, thus, is not a valid alternative to direct corpo-rate expenditures. Indeed, the Court asserts that theSupreme Court rejected PACs “because of the bur-densome, extensive, and expensive Federal regula-tions that applied.” Opinion, ¶ 12. This is false.Granted, the Supreme Court briefly noted that“PACs are burdensome alternatives; they are expen-sive to administer and subject to extensive regula-tions.” Citizens United, 130 S. Ct. at 897. Yet, evenif federal PACs were as “easily implemented” as theCourt says Montana’s PACs are, Opinion, ¶ 21, the

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fundamental problem with PACs still remains: “APAC is a separate association from the corporation.So the PAC exemption from [the law’s] expenditureban does not allow corporations to speak.” CitizensUnited, 130 S. Ct. at 897 (citation omitted). Bottomline: “[Section 227(1)] is a ban on corporate speechnotwithstanding the fact that a PAC created by acorporation [as permitted under § 227(3)] can stillspeak.” Citizens United, 130 S. Ct. at 897. TheCourt’s contrary holding is plainly wrong.

B. Anticorruption and RestrainingCorporate Influence

¶102 The Court cites various examples of “well-financed corruption” perpetrated by F. AugustusHeinze, the Anaconda Company, and W.A. Clark.Opinion, ¶¶ 23-28. Notably, some of these examplesinvolved blatant bribery and quid pro quo corruption(i.e., dollars for political favors), but it is not clearthat any of them involved independent expenditures(i.e., political speech presented to the electorate thatis not coordinated with a candidate) in exchange forpolitical favors. In any event, the Court then pro-ceeds to paint a dismal picture of the corporate “do-mination” and “influence” that has persisted in Mon-tana. Opinion, ¶ 29. From this discussion, the Courtconcludes as follows. First, voters had a “compellinginterest” to enact the challenged statute in 1912 be-cause “the real social and political power [in Mon-tana] was wielded by powerful corporate managersto further their own business interests,” and the vot-ers were fed up with the “corrupt practices” and“heavy-handed influence” asserted by the special in-terests controlling Montana’s political institutions.

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Opinion, ¶ 36. Second, the statute “has worked topreserve a degree of political and social autonomy”from “shadowy” corporate figures who seek to pro-mote their own interests. Opinion, ¶ 37. And finally,there is still a sufficient interest to support the stat-ute because “[i]ssues of corporate influence, sparsepopulation, dependence upon agriculture and extrac-tive resource development, location as a transporta-tion corridor, and low campaign costs make Montanaespecially vulnerable to continued efforts of corpo-rate control.” Opinion, ¶ 37.

¶103 It is patently unconstitutional, however, forthe government to silence a speaker on the groundthat the speaker might otherwise exert an undesiredamount of “influence” or “control” in government andpolitics. Under such a rationale, any disfavored classof speakers could be censored if thought to be too“influential.” The Supreme Court unequivocally re-pudiated the notion that corporate political speechcan be restricted “as a means to prevent corporationsfrom obtaining an unfair advantage in the politicalmarketplace by using resources amassed in theeconomic marketplace.” Citizens United, 130 S. Ct. at

904 (internal quotation marks omitted). Austin’sholding was founded on the same concern expressedby the Court here: that “[c]orporate wealth can un-fairly influence elections when it is deployed in theform of independent expenditures.” Austin, 494 U.S.at 660, 110 S. Ct. at 1398. The Supreme Court inCitizens United, however, held that “Austin is over-ruled, so it provides no basis for allowing the Gov-ernment to limit corporate independent expendi-tures.” 130 S. Ct. at 913. The Supreme Court “re-

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jected the premise that the Government has an in-terest in equalizing the relative ability of individualsand groups to influence the outcome of elections.”Citizens United, 130 S. Ct. at 904 (internal quotationmarks omitted).

¶104 “Favoritism and influence are not . . . avoid-able in representative politics,” and “[r]eliance on ageneric favoritism or influence theory . . . is at oddswith standard First Amendment analyses because itis unbounded and susceptible to no limiting princi-ple.” Citizens United, 130 S. Ct. at 910 (ellipses inoriginal, internal quotation marks omitted). More tothe point, the First Amendment prohibits “restric-tions distinguishing among different speakers, allow-ing speech by some but not others.” Citizens United,130 S. Ct. at 898. “‘In the realm of protected speech,the legislature is constitutionally disqualified fromdictating the subjects about which persons mayspeak and the speakers who may address a public is-sue.’” Citizens United, 130 S. Ct. at 902 (quoting Bel-lotti, 435 U.S. at 784-85, 98 S. Ct. at 1420). The go-vernment may not bar corporations from contribut-ing to the “open marketplace” of ideas. Citizens Unit-ed, 130 S. Ct. at 906. “When Government seeks touse its full power, including the criminal law, to com-mand where a person may get his or her informationor what distrusted source he or she may not hear, ituses censorship to control thought. This is unlawful.The First Amendment confirms the freedom to thinkfor ourselves.” Citizens United, 130 S. Ct. at 908.

¶105 The Court tries to distinguish Citizens Unitedas “decided upon its facts” and involving only federallaws and federal elections, while this case “concerns

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Montana law, Montana elections and . . . Montanahistory.” Opinion, ¶¶ 11, 16. Yet, Bellotti involved astate law, and the Supreme Court in Citizens Unitedexpressly noted that

[Bellotti] rested on the principle that theGovernment lacks the power to ban corpora-tions from speaking. Bellotti did not addressthe constitutionality of the State’s ban oncorporate independent expenditures to sup-port candidates. In our view, however, thatrestriction would have been unconstitutionalunder Bellotti’s central principle: that the FirstAmendment does not allow political speechrestrictions based on a speaker’s corporateidentity.

Citizens United, 130 S. Ct. at 903 (emphasis added,paragraph break omitted).

¶106 Like its “influence” rationale, the Court’s “cor-ruption” rationale is also untenable. Regardless ofthe history of “bribery,” “control,” and “naked corpo-rate manipulation” recounted by the Court, Opinion,¶¶ 23, 25, 28, plaintiffs here do not challenge thestatutory prohibition on corporate contributions.Rather, they challenge the prohibition on corporateexpenditures. And the Supreme Court stated veryclearly “that independent expenditures, includingthose made by corporations, do not give rise to cor-ruption or the appearance of corruption.” CitizensUnited, 130 S. Ct. at 909. “When Buckley identifieda sufficiently important governmental interest inpreventing corruption or the appearance of corrup-tion, that interest was limited to quid pro quo corrup-tion.” Citizens United, 130 S. Ct. at 909. “The hall-

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mark of corruption is the financial quid pro quo:dollars for political favors.” Citizens United, 130 S.Ct. at 910 (internal quotation marks omitted). “[I]n-dependent expenditures do not lead to, or create theappearance of, quid pro quo corruption. In fact, thereis only scant evidence that independent expenditureseven ingratiate. Ingratiation and access, in anyevent, are not corruption.” Citizens United, 130 S. Ct.at 910 (citation omitted).

¶107 As for the Court’s fear that invalidation of§ 227(1)’s prohibition on independent expendituresby corporations will return Montana to its pre-1912days of corruption and corporate domination, theSupreme Court answered this concern as follows:

If elected officials succumb to improper influ-ences from independent expenditures; if theysurrender their best judgment; and if they putexpediency before principle, then surely thereis cause for concern. We must give weight toattempts by [the legislature] to seek to dispeleither the appearance or the reality of theseinfluences. The remedies enacted by law,however, must comply with the First Amend-ment; and, it is our law and our tradition thatmore speech, not less, is the governing rule. Anoutright ban on corporate political speech . . .is not a permissible remedy.

Citizens United, 130 S. Ct. at 911 (emphases added).

C. Citizen Protection

¶108 The Court observes that allowing unlimitedindependent expenditures of corporate money intothe Montana political process would “drasticallychange campaigning by shifting the emphasis to

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raising funds.” Opinion, ¶ 30. Direct political spend-ing by corporations could also “significantly affectthe outcome of elections.” Opinion, ¶ 32. The Courtexplains that Montana has a small population andenjoys political campaigns marked by person-to-person contact and a low cost of advertising com-pared to other states. Opinion, ¶ 30. Thus, the in-fusion of unlimited corporate money in support of oropposition to a targeted candidate would leave theaverage citizen candidate “unable to compete againstthe corporate-sponsored candidate.” Opinion, ¶ 38.

¶109 Furthermore, Montana voters feel they do notreally “count” in the political process unless they canmake a material financial contribution; and they areconcerned, therefore, that special interests holdsway. Opinion, ¶ 31. The percentage of campaigncontributions from individual voters is much less instates that do not have restrictions on corporatespending. Opinion, ¶ 33. At present, the individualcontribution limit for Montana House, Senate, andDistrict Court races is $160 and for Supreme Courtelections is $310. Opinion, ¶ 38. Thus, with the in-fusion of unlimited corporate money in support of oropposition to a targeted candidate, “Montana citi-zens, who for over 100 years have made their modestelection contributions meaningfully count[,] would beeffectively shut out of the process.” Opinion, ¶ 38.“Clearly the impact of unlimited corporate donationscreates a dominating impact on the political processand inevitably minimizes the impact of individualcitizens.” Opinion, ¶ 41. The State “has an interest inencouraging the full participation of the Montanaelectorate.” Opinion, ¶ 38; accord Opinion, ¶ 41.

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¶110 While I understand the Court’s desire to pro-tect the ability of citizen candidates to compete, andthe ability of citizens to meaningfully participate andbe heard in the political process, this rationale hasbeen rejected. “‘[T]he concept that government mayrestrict the speech of some elements of our society inorder to enhance the relative voice of others is whollyforeign to the First Amendment.’” Citizens United,130 S. Ct. at 904 (brackets in original) (quotingBuckley, 424 U.S. at 48-49, 96 S. Ct. at 649). TheCourt’s reasoning is essentially a repackaged versionof the antidistortion rationale, which the SupremeCourt answered as follows:

Austin sought to defend the antidistortionrationale as a means to prevent corporationsfrom obtaining “an unfair advantage in thepolitical marketplace” by using “resourcesamassed in the economic marketplace.” ButBuckley rejected the premise that the Govern-ment has an interest “in equalizing the rela-tive ability of individuals and groups to influ-ence the outcome of elections.” Buckley wasspecific in stating that the skyrocketing cost ofpolitical campaigns could not sustain thegovernmental prohibition. The First Amend-ment’s protections do not depend on thespeaker’s financial ability to engage in publicdiscussion.

Citizens United, 130 S. Ct. at 904 (citations and someinternal quotation marks omitted). “The rule that po-litical speech cannot be limited based on a speaker’swealth is a necessary consequence of the premisethat the First Amendment generally prohibits the

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suppression of political speech based on the speak-er’s identity.” Citizens United, 130 S. Ct. at 905. TheCourt’s citizen-protection theory is invalid underCitizens United.

D. Elected Judges

¶111 The Court next discusses Montana’s interestsin “protecting and preserving its system of electedjudges,” providing “an independent, fair and impar-tial judiciary,” and “preserving the appearance of ju-dicial propriety and independence.” Opinion, ¶¶ 39-40. The Court fears that “Montana judicial electionswould be particularly vulnerable to large levels ofindependent spending, both in terms of fairness andin terms of the public perception of impartiality.”Opinion, ¶ 44. The Court cites Sandra Day O’Con-nor’s recent observation that the “‘crisis of confidencein the impartiality of the judiciary is real and grow-ing.’” Opinion, ¶ 45. Noting that Montana is not im-9

mune from the influence of corporate-funded “superspender groups,” the Court concludes that Montana“has a compelling interest in precluding corporateexpenditures on judicial elections based upon itsinterest in insuring judicial impartiality and integ-rity, its interest in preserving public confidence inthe judiciary and its interest in protecting the dueprocess rights of litigants.” Opinion, ¶ 45.

It is somewhat ironic that the Court would cite Justice9

O’Connor in the context of discussing Montana’s “interestin protecting and preserving its system of elected judges,”given that she has been openly critical of this form of select-ing judges. See Republican Party of Minn. v. White, 536 U.S.765, 788-92, 122 S. Ct. 2528, 2542-44 (2002) (O’Connor, J.,concurring).

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¶112 While I share some of the Court’s concerns,10

I do not believe the Supreme Court will allow a stateto single out corporations as a group and prohibitthem from speaking in judicial elections. First of all,as noted already, the First Amendment prohibits“restrictions distinguishing among different speak-ers, allowing speech by some but not others.” Citi-zens United, 130 S. Ct. at 898. More to the point, “theFirst Amendment does not allow political speechrestrictions based on a speaker’s corporate identity.”Citizens United, 130 S. Ct. at 903.

¶113 Secondly, Caperton v. A.T. Massey Coal Co.,556 U.S. 868, 129 S. Ct. 2252 (2009), which theCourt cites at ¶ 43, is of no assistance. Caperton heldthat a judge was required to recuse himself “when aperson with a personal stake in a particular case hada significant and disproportionate influence inplacing the judge on the case by raising funds ordirecting the judge’s election campaign when thecase was pending or imminent.” 129 S. Ct. at 2263-64. As the Supreme Court later explained in CitizensUnited, “[t]he remedy of recusal was based on a liti-gant’s due process right to a fair trial before an un-biased judge. Caperton’s holding was limited to therule that the judge must be recused, not that thelitigant’s political speech could be banned.” 130 S.Ct. at 910 (citation omitted). In other words, recusalis the remedy for the concern with “protecting thedue process rights of litigants” (Opinion, ¶ 45), not

See James C. Nelson, Keeping Faith with the Vision:10

Interpreting a Constitution for This and Future Generations,71 Mont. L. Rev. 299, 311 (2010).

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banning corporate speech.

¶ 114 Third, Justice Stevens raised this exact issuein his dissent, pointing out that

[t]he majority of the States select their judgesthrough popular elections. At a time whenconcerns about the conduct of judicial elec-tions have reached a fever pitch, the Court to-day unleashes the floodgates of corporate andunion general treasury spending in theseraces. Perhaps “Caperton motions” will catchsome of the worst abuses. This will be smallcomfort to those States that, after today, mayno longer have the ability to place modest li-mits on corporate electioneering even if theybelieve such limits to be critical to maintain-ing the integrity of their judicial systems.

Citizens United, 130 S. Ct. at 968 (citations omitted).In response, the majority certainly could have leftopen the possibility that judicial elections implicateunique interests justifying restrictions on corporateexpenditures in that particular context. The majoritydid not do so, however. The majority, rather, re-11

mained firm and categorical: the First Amendmentdoes not allow political speech restrictions based ona speaker’s corporate identity, and speech restric-tions aimed at reducing the relative ability of corpo-rations to influence the outcome of elections are in-

Notably, the Supreme Court eight years earlier11

rejected as “not a true picture of the American system” thenotion that an elected judiciary is completely separate fromthe enterprise of “representative government.” White, 536U.S. at 784, 122 S. Ct. at 2539.

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valid. Citizens United, 130 S. Ct. at 903, 904.

¶115 Lastly, the Supreme Court’s decision in White,536 U.S. 765, 122 S. Ct. 2528, strongly indicates thatthe interests cited by the Court here are insufficientfor prohibiting corporate speech in judicial elections.The Supreme Court—Justice Scalia joined by ChiefJustice Rehnquist, Justice O’Connor, Justice Ken-nedy, and Justice Thomas—held that the MinnesotaSupreme Court’s canon of judicial conduct (the“announce clause”) prohibiting candidates for judi-cial election from announcing their views on dis-puted legal and political issues violated the FirstAmendment. White, 536 U.S. at 788, 122 S. Ct. at2542. The interests asserted in support of the an-nounce clause were the same interests asserted bythe Court in the present case:

preserving the impartiality of the state judi-ciary and preserving the appearance of theimpartiality of the state judiciary. Respon-dents reassert these two interests before us,arguing that the first is compelling because itprotects the due process rights of litigants,and that the second is compelling because itpreserves public confidence in the judiciary.

White, 536 U.S. at 775, 122 S. Ct. at 2535 (citationomitted). In analyzing these interests, the WhiteCourt considered different possible meanings of theterm “impartiality.” One meaning is the “lack of biasfor or against either party to the proceeding,” which“guarantees a party that the judge who hears hiscase will apply the law to him in the same way heapplies it to any other party.” White, 536 U.S. at 775-76, 122 S. Ct. at 2535 (emphasis in original). With-

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out stating expressly whether this was a compellingstate interest, the Supreme Court held that theannounce clause’s restriction on speech for or againstparticular issues did not serve the interest in assur-ing equal application of the law to particular parties.White, 536 U.S. at 776, 122 S. Ct. at 2535. Anothermeaning of impartiality is the “lack of preconceptionin favor of or against a particular legal view.” White,536 U.S. at 777, 122 S. Ct. at 2536 (emphasis in ori-ginal). The Supreme Court disagreed, however, withthe proposition that “[a] judge’s lack of predispositionregarding the relevant legal issues in a case” is acompelling state interest. White, 536 U.S. at 777-78,122 S. Ct. at 2536. Likewise, the Supreme Court con-cluded that a third possible meaning—“open mind-edness”—was an implausible basis for the announceclause. White, 536 U.S. at 778-81, 122 S. Ct. at 2536-38.

¶116 Of relevance to the present discussion, theSupreme Court observed in White that “the notionthat the special context of electioneering justifies anabridgment of the right to speak out on disputedissues sets our First Amendment jurisprudence onits head. Debate on the qualifications of candidatesis at the core of our electoral process and of the FirstAmendment freedoms, not at the edges.” 536 U.S. at781, 122 S. Ct. at 2538 (alteration, emphasis, and in-ternal quotation marks omitted). Concerning therelationship between judicial elections and the FirstAmendment, the Supreme Court stated:

There is an obvious tension between the arti-cle of Minnesota’s popularly approved Consti-tution which provides that judges shall be

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elected, and the Minnesota Supreme Court’sannounce clause which places most subjects ofinterest to the voters off limits. . . . The dispar-ity is perhaps unsurprising, since the ABA,which originated the announce clause, haslong been an opponent of judicial elections.That opposition may be well taken (it certainlyhad the support of the Founders of the FederalGovernment), but the First Amendment doesnot permit it to achieve its goal by leaving theprinciple of elections in place while preventingcandidates from discussing what the electionsare about. The greater power to dispense withelections altogether does not include the lesserpower to conduct elections under conditions ofstate-imposed voter ignorance. If the Statechooses to tap the energy and the legitimizingpower of the democratic process, it must accordthe participants in that process . . . the FirstAmendment rights that attach to their roles.

White, 536 U.S. at 787-88, 122 S. Ct. at 2541 (secondellipsis in original, brackets, citations, and internalquotation marks omitted).

¶117 Justice O’Connor made a similar point in herconcurrence:

Minnesota has chosen to select its judgesthrough contested popular elections . . . . Indoing so the State has voluntarily taken onthe risks to judicial bias described above. As aresult, the State’s claim that it needs to signif-icantly restrict judges’ speech in order to pro-tect judicial impartiality is particularly trou-bling. If the State has a problem with judicial

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impartiality, it is largely one the Statebrought upon itself by continuing the practiceof popularly electing judges.

White, 536 U.S. at 792, 122 S. Ct. at 2544 (O’Connor,J., concurring).

¶118 Perhaps most telling are the remarks of Jus-tice Kennedy—who, as noted, authored the majorityopinion in Citizens United. Justice Kennedy agreedthat “[j]udicial integrity is . . . a state interest of thehighest order.” White, 536 U.S. at 793, 122 S. Ct. at2544 (Kennedy, J., concurring). He also acknowl-edged that a state may choose to have an elected ju-diciary, may strive to define those characteristicsthat exemplify judicial excellence, may enshrine itsdefinitions in a code of judicial conduct, may adoptrecusal standards more rigorous than due processrequires, and may censure judges who violate thesestandards. White, 536 U.S. at 794, 122 S. Ct. at 2545.

What [a state] may not do, however, is censorwhat the people hear as they undertake todecide for themselves which candidate is mostlikely to be an exemplary judicial officer.Deciding the relevance of candidate speech isthe right of the voters, not the State. The lawin question here contradicts the principle thatunabridged speech is the foundation of politi-cal freedom. The State of Minnesota no doubtwas concerned, as many citizens and thought-ful commentators are concerned, that judicialcampaigns in an age of frenetic fundraisingand mass media may foster disrespect for thelegal system. Indeed, from the beginning therehave been those who believed that the rough-

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and-tumble of politics would bring our govern-mental institutions into ill repute. And somehave sought to cure this tendency with govern-mental restrictions on political speech. SeeSedition Act of 1798, ch. 74, 1 Stat. 596. Cool-er heads have always recognized, however,that these measures abridge the freedom ofspeech—not because the state interest isinsufficiently compelling, but simply becausecontent-based restrictions on political speechare expressly and positively forbidden by theFirst Amendment. The State cannot opt for anelected judiciary and then assert that its de-mocracy, in order to work as desired, compelsthe abridgment of speech.

White, 536 U.S. at 794-95, 122 S. Ct. at 2545 (em-phases added, internal quotation marks and somecitations omitted).

¶119 The principle espoused by Justice Kennedy inWhite—that a state may not “censor what the peoplehear as they undertake to decide for themselveswhich candidate is most likely to be an exemplaryjudicial officer”—is consistent with the theme of theCitizens United opinion: “[I]t is our law and ourtradition that more speech, not less, is the governingrule,” 130 S. Ct. at 911, and “[n]o sufficient govern-mental interest justifies limits on the political speechof nonprofit or for-profit corporations,” 130 S. Ct. at913. A fair reading of the broad holding in CitizensUnited, together with a fair reading of the FirstAmendment principles articulated in White, leadsinevitably to the conclusion that corporate independ-ent expenditures can no more be prohibited in judi-

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cial elections than they can be in legislative andexecutive elections.

E. Summary

¶120 In sum, what has happened here is essentiallythis: The Supreme Court in Citizens United (and inWhite) rejected several asserted governmental inter-ests; and this Court has now come along, retrievedthose interests from the garbage can, dusted themoff, slapped a “Made in Montana” sticker on them,and held them up as grounds for sustaining a pa-tently unconstitutional state statute. The erroneouspremise underlying the Court’s entire approach hereis its belief that the Supreme Court rejected the as-serted governmental interests only as applied tofederal elections. Opinion, ¶¶ 11, 16. Nowhere in itsdecision did the Supreme Court state that there wassomething unique about federal elections that pre-cluded the PAC-as-an-alternative theory, the anti-distortion rationale, or the anticorruption interest asjustifications for restricting independent expendi-tures by corporations. The Supreme Court simply re-jected all of these arguments outright, in broad andunqualified language. Not only that, the Supreme

Court expressly noted that “Bellotti did not addressthe constitutionality of the State’s ban on corporateindependent expenditures to support candidates. Inour view, however, that restriction would have beenunconstitutional under Bellotti’s central principle:that the First Amendment does not allow politicalspeech restrictions based on a speaker’s corporateidentity.” Citizens United, 130 S. Ct. at 903 (empha-sis added) (citing Bellotti, 435 U.S. at 784-85, 98 S.Ct. at 1420). This Court is extremely misguided,

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therefore, in attempting to resurrect the rejected go-vernmental interests under a “Montana is unique”theory.

V. CONCLUSION

¶121 As demonstrated, the Supreme Court’s deci-sion in Citizens United is clear with regard to theFirst Amendment’s protection of corporate politicalspeech. Section 13-35-227(1), MCA, impermissiblyrestricts such speech by prohibiting corporationsfrom making “an expenditure in connection with acandidate or a political committee that supports oropposes a candidate or a political party.” The statuteis, therefore, facially unconstitutional under CitizensUnited.

¶122 That said, and as noted above, I agree, atleast in principle, with the arguments and concernsexpressed by the Attorney General and the amicicuriae supporting the State. I am deeply frustrated,as are many Americans, with the reach of CitizensUnited. The First Amendment has now been elevat-ed to a vaunted and isolated position so as to endowcorporations with extravagant rights of politicalspeech and, with those rights, the exaggerated powerto influence voters and elections.

¶123 Professor Howell suggests that “[t]he discon-nect between [Citizens United’s and Caperton’s]statements about corruption” provides Montana anopportunity to preserve its Corrupt Practices Act asapplied to judicial elections. See Larry Howell, OnceUpon a Time in the West: Citizens United, Caperton,and the War of the Copper Kings, at 26 (available athttp://mtlr.org). For my own part, I doubt that ap-proach will be successful. In its zeal to grant corpora-

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tions unlimited rights of political speech, the Su-preme Court summarily dismissed its decision inCaperton with the statement that Caperton “is not tothe contrary” because its holding “was limited to therule that the judge must be recused, not that thelitigant’s political speech could be banned.” CitizensUnited, 130 S. Ct. at910 (emphasis added). Thisstatement, along with the observations of the dissentin Citizens United and the statements by the major-ity and concurring opinions in White, lead me to con-clude that Citizens United will eventually be appliedto state judicial elections, leaving recusals as the12

sole remedy where corporate expenditures have cor-rupted or biased the judge or judges at issue.13

¶124 Once Citizens United is imposed on electedstate judiciaries, I am concerned—as were JusticesStevens, Ginsburg, Breyer, and Sotomayor; as aremy former colleagues (see Amicus Brief of FormerMontana Supreme Court Justices William Hunt,William Leaphart, James Regnier, Terry Trieweilerand John Warner (Apr. 27, 2011)); and as is theCourt in today’s Opinion—that judicial elections willbecome little better than the corporate bidding wars

As reflected in the discussion of White (¶¶ 116-118, su-12

pra), and as I have previously noted (Nelson, 71 Mont. L.Rev. at 310), the system of electing judges and justices pre-sently finds little support or esteem from the appointedfederal judiciary.

Perhaps, ironically, it will come to pass that the best13

way to insure that a judge or justice does not sit on a caseinvolving a particular corporation is for the corporation torun a vigorous and expensive campaign supporting thejudge’s election.

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that elections for partisan offices have already be-come. I have suggested, therefore, that Montana’svoters may—and probably should—amend the Mon-tana Constitution to implement a merit system forselecting judges. See James C. Nelson, Introduction,72 Mont. L. Rev. 1, 5-6 (2011); cf. W. William Leap-hart, First Right of Recusal, 72 Mont. L. Rev. 287(2011) (suggesting that Montana adopt an enforce-able mechanism for removing Montana justices whenpotential bias exists).

¶125 While, as a member of this Court, I am boundto follow Citizens United, I do not have to agree withthe Supreme Court’s decision. And, to be absolutely14

clear, I do not agree with it. For starters, the notionthat corporations are disadvantaged in the politicalrealm is unbelievable. Indeed, it has astounded mostAmericans. The truth is that corporations wield inor-dinate power in Congress and in state legislatures.It is hard to tell where government ends and corpo-rate America begins; the transition is seamless andoverlapping. In my view, Citizens United has turnedthe First Amendment’s “open marketplace” of ideas

Cf. J. Harvie Wilkinson III, Of Guns, Abortions, and14

the Unraveling Rule of Law, 95 Va. L. Rev. 253, 255-56(2009) (“It is the solemn duty of judges on the inferior fed-eral courts to follow, both in letter and in spirit, rules anddecisions with which we may not agree. Our oath demandsit, and our respect for the Supreme Court as an institutionand for the able and dedicated individuals who serve on itrequires no less. But esteem can likewise be manifest in therespectful expression of difference—that too is the essenceof the judicial craft.”).

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into an auction house for Friedmanian corporatists.15

Freedom of speech is now synonymous with freedomto spend. Speech equals money; money equals demo-cracy. This decidedly was not the view of the consti-tutional founders, who favored the preeminence ofindividual interests over those of big business. Citi-zens United, 130 S. Ct. at 949-50 (dissenting opin-ion).

¶126 Second, I disagree with the premise that un-limited corporate political speech is essential to “en-lightened self-government” and aids the electorate inmaking “informed choices.” Citizens United, 130 S.Ct. at 898, 907. I agree that “[r]hetoric ought not ob-scure reality.” Citizens United, 130 S. Ct. at 907. ButI cannot agree that the Citizens United majority’sviews reflect “reality.” For one thing, voters general-ly do not have the desire, much less the time, sophis-tication, or ability, to sift through hours upon hoursof attack ads, political mumbo jumbo, and soundbites in order to winnow truth (of which there oftenseems to be very little) from fiction and half-truths(of which there unfortunately seems to be an endlesssupply). The Supreme Court believes the solution16

Milton Friedman: the guru, popularizer, and propa-15

gandist for unrestrained free-market economics. See NaomiKlein, Shock Doctrine: The Rise of Disaster Capitalism(Henry Holt & Co. 2007).

For example, the Los Angeles Times recently reported16

that Crossroads GPS, the conservative group co-founded byKarl Rove, released an ad slamming Montana Senator JonTester for supporting an Environmental Protection Agencyregulation on farm dust. However, one Montana cable showpulled the ad “because the network determined that it was

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for false or misleading speech is more speech. Yet, anendless barrage of accusations and counter accusa-tions providing more fodder than fact only serves tooverwhelm, confuse, and disenchant voters.

¶127 Furthermore, it defies reality to suggest thatmillions of dollars in slick television and Internetads—put out by entities whose purpose and exper-tise, in the first place, is to persuade people to buywhat’s being sold—carry the same weight as the fli-ers of citizen candidates and the letters to the editorof John and Mary Public. It is utter nonsense tothink that ordinary citizens or candidates can spendenough to place their experience, wisdom, and viewsbefore the voters and keep pace with the virtuallyunlimited spending capability of corporations toplace corporate views before the electorate. In spend-ing ability, bigger really is better; and with cam-paign advertising and attack ads, quantity counts. Inthe end, candidates and the public will become merebystanders in elections.

¶128 Third, with respect to the interests of share-holders in not being compelled to fund corporatepolitical speech with which they disagree, I do notbelieve that participation in “corporate democracy”actually accounts for anything—unless, of course,the objecting shareholder is an insider or owns a con-trolling percentage of the outstanding stock. I cannotagree that “corporate democracy” will cause big busi-ness and multinational corporations to exercise re-

false; the regulation was actually never proposed, and thevote cited in the ad was a procedural measure.” Tom Ham-burger & Melanie Mason, Chamber of Commerce GettingEarly Start with Attack Ads, L.A. Times (Nov. 16, 2011).

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sponsibly their new unlimited power to speak andspend. It won’t, because money, influence, and accessare at stake. Any notion to the contrary is simply thetriumph of hope over experience.

¶129 Fourth, I absolutely do not agree that corpo-rate money in the form of “independent expendi-tures” expressly advocating the election or defeat ofcandidates cannot give rise to corruption or the ap-pearance of corruption. Of course it can. Even themost cursory review of decades of partisan cam-paigns and elections, whether state or federal, de-monstrates this. Citizens United held that the onlysufficiently important governmental interest in pre-venting corruption or the appearance of corruption isone that is limited to quid pro quo corruption. Thisis simply smoke and mirrors. See Citizens United,130 S. Ct. at 961 (dissenting opinion). In the realworld of politics, the “quid pro quo” of both directcontributions to candidates and independent expen-ditures on their behalf is loyalty. And, in practicaleffect, experience teaches that money corrupts, andenough of it corrupts absolutely. See e.g. Caperton,556 U.S. 868, 129 S. Ct. 2252.

¶130 Fifth, therefore, I cannot agree with theholding that the prevention of corruption in the formof independent expenditures is not a compellingstate interest. There is no plausible reason why astate would not want to protect the integrity of itselection process against corruption and undue influ-ence; to do otherwise would render the fundamentalright to vote a meaningless exercise. To my knowl-edge, the First Amendment has never been inter-preted to be absolute and gloriously isolated from

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other fundamental rights and values protected bythe Constitution. Yet, Citizens United distorts theright to speech beyond recognition. Indeed, I amshocked that the Supreme Court did not balance theright to speech with the government’s compellinginterest in preserving the fundamental right to votein elections.

¶131 At the same time, though, I am not persuadedthat Montana’s experience with corruption is as“unique” as the Attorney General and this Court po-sit. Each state has its own corruption horror storiesand has battled political and election corruption atone time or another. Even a casual examination ofthe daily newspaper or the evening news proves thatbattling political corruption is ongoing; like paintingthe Golden Gate Bridge, when you reach one end,you start over at the other. It should be noted thatMontana’s Corrupt Practices Act was adopted in1912 at a time when the country’s focus was on pre-venting political corruption, not on protecting corpo-rate influence. Due to intervening changes in thecomposition and philosophy of the Supreme Court,that focus has now flip-flopped. See Zephyr Teach-

out, The Historical Roots of Citizens United v. FEC:How Anarchists and Academics Accidentally CreatedCorporate Speech Rights, 5 Harv. L. & Policy Rev.163 (2011). Montana’s Corrupt Practices Act has be-come an historical—and unconstitutional—artifact,and it will have to be legislatively revised to accom-modate a changed time and a changed SupremeCourt. A number of our sister states have modifiedtheir laws in the wake of Citizens United (see ¶ 72 n.4, supra), and I expect that Montana’s 2013 Legisla-

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ture will, or should, be tasked with doing the same.

¶132 Lastly, I am compelled to say something aboutcorporate “personhood.” While I recognize that thisdoctrine is firmly entrenched in the law, see Bellotti,435 U.S. at 780 n. 15, 98 S. Ct. at 1418 n. 15; but see435 U.S. at 822, 98 S. Ct. at 1439-40 (Rehnquist, J.,dissenting), I find the entire concept offensive. Cor-porations are artificial creatures of law. As such,they should enjoy only those powers—not constitu-tional rights, but legislatively-conferred powers—that are concomitant with their legitimate function,that being limited-liability investment vehicles forbusiness. Corporations are not persons. Human be-ings are persons, and it is an affront to the inviolabledignity of our species that courts have created a legalfiction which forces people—human beings—to sharefundamental, natural rights with soulless creationsof government. Worse still, while corporations andhuman beings share many of the same rights underthe law, they clearly are not bound equally to thesame codes of good conduct, decency, and morality,and they are not held equally accountable for theirsins. Indeed, it is truly ironic that the death penaltyand hell are reserved only to natural persons.

¶133 Having said all this, I must return to the cent-ral point of this Dissent. Regardless of my disagree-ment with the views of the Citizens United majority,the fact remains that the Supreme Court has spoken.It has interpreted the protections of the FirstAmendment vis-à-vis corporate political speech.Agree with its decision or not, Montana’s judiciaryand elected officers are bound to accept and enforcethe Supreme Court’s ruling—in the same way that

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this Court demands obedience to its rulings, likethem or not.

¶134 For these reasons, I dissent from the Court’sanalysis in the instant case. I disagree with theCourt’s decision to parse Citizens United in a fashionso as to “send a message” to, or be the next “testcase” before, the Supreme Court. In my view, thisapproach is disingenuous. Montana is in the sameFirst Amendment swimming pool as every otherstate, and the Supreme Court has dictated that itswaters are expansive and deep when it comes tocorporate political speech. Citizens United is the lawof the land, and this Court is duty-bound to follow it.When this case is appealed to the Supreme Court, asI expect it will be, a summary reversal on the merits(see U.S. Sup. Ct. R. 16) would not surprise me in theleast.

¶135 In my opinion, District Court Judge Sherlock’swell-reasoned and courageous—though politicallyunpopular—decision should be affirmed. I cannotagree with this Court’s determination not to do so.Therefore, I respectfully and regretfully dissent.

/S/ JAMES C. NELSON

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[Editing Note: This Order is available at 2010 WL

4257195. Page numbers (*1) are to the slip opinion.]

Nancy SweeneyClerk District CourtFiled by [illegible]

Deputy[“Received” stamp omitted.] 2010 Oct 18 A 11:49

MONTANA FIRST JUDICIAL DISTRICTCOURT LEWIS AND CLARK COUNTY

WESTERN TRADITIONPARTNERSHIP, INC., acorporation registered inthe State of Montana, andCHAMPION PAINTING,INC., a Montana corpora-tion; MONTANASHOOTING SPORTS AS-SOCIATION, INC., aMontana corporation,

Plaintiffs,

v.

ATTORNEY GENERAL ofthe State of Montana, andCOMMISSIONER OF PO-LITICAL PRACTICES,

Defendants.

Cause No.BDV-2010-238

ORDER ONCROSS-MOTIONSFORSUMMARYJUDGMENT

This matter is before the Court on Plaintiff’s mo-tion for summary judgment and Defendant’s cross-motion for summary judgment. Plaintiff’s motion

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seeks a declaration that Section 13-35-227(1), MCA,as it applies to independent corporate expendituresis unconstitutional under the recent United StatesSupreme Court decision regarding corporate expen-ditures, Citizens United v. Fed. Election *2 Comm’n,

130 S. Ct. 876, 175 L. Ed. 753 (2010). Plaintiffs seekan injunction permanently enjoining Defendants andall county attorneys from enforcing the statute.Plaintiffs also seek their attorney fees and costs. De-fendants’ cross-motion argues that the statute isconstitutional and should be upheld.

BACKGROUND

Plaintiff Champion Painting, Inc. (ChampionPainting), is a small family-owned painting and dry-wall business incorporated in the State of Montana.Champion Painting does not have employees ormembers—its sole shareholder is Kenneth Cham-pion. Champion Painting would like to spend its cor-porate funds to participate in public discussions,purchase TV spots and radio advertisements, andcreate and distribute brochures and fliers to supportor oppose political candidates it believes will have apositive or negative effect on small businesses.

Montana Shooting Sports Association, Inc.(MSSA), is a not-for-profit corporation incorporatedunder the laws of the State of Montana. MSSA wouldlike to use its corporate funds to support or opposecandidates depending on candidates’ positions on is-sues dear to MSSA’s purpose. MSSA would spend itsgeneral treasury funds on direct mail, newspaper,and radio advertising to its members and the generalpublic.

Western Tradition Partnership, Inc. (WTP), is a

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non-profit corporation registered with the MontanaSecretary of State, but organized under the laws ofthe State of Colorado.

Montana law prohibits a corporation from making“an expenditure in connection with a candidate or apolitical committee that supports or opposes acandidate or political party.” Section 13-35-227(1),MCA (hereafter Section 227). An “expenditure” in-cludes “a purchase, payment, distribution, loan, ad-vance, promise, *3 pledge, or gift of money or any-

thing of value made for the purpose of influencingthe results of an election.” Section 13-1-101(11),MCA. It does not include, among other things, “thecost of any bona fide news story, commentary, or edi-torial distributed through the facilities of any broad-casting station, newspaper, magazine, or other peri-odical publication of general circulation.” Section 13-1-101(11)(b)(iii), MCA. A corporation may establisha separate, segregated fund (also known as a “politi-cal committee” or “PAC”) to make expenditures “ifthe fund consists of only voluntary contributions soli-cited from an individual who is a shareholder,employee, or member of the corporation.” Section 13-35-227(3), MCA. A person who violates Section 227may be “liable in a civil action brought by the com-missioner or a county attorney . . . for an amount ofup to $500 or three times the amount of the unlawfulcontribution or expenditure, whichever is greater.”Section 13-37-128(2), MCA.

Plaintiffs do not challenge the prohibition againstdirect corporate contributions to candidates or Mon-tana’s disclosure or disclaimer laws. What is at issuehere are independent corporate expenditures made

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on behalf of a candidate. Corporations, under currentMontana law, are allowed to make independent ex-penditures on ballot issues. Mont. Chamber of Com-merce v. Argenbright, 226 F.3d 1049 (9th Cir. 2000).

STANDARD OF REVIEW

Summary judgment is appropriate when “thepleadings, depositions, answers to interrogatories,and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled tojudgment as a matter of law.” Rule 56(c), M.R.Civ.P.

The party moving for summary judgment mustestablish the absence of any genuine issue of mate-rial fact and entitlement to judgment as a matter oflaw. Tin *4 Cup County Water and/or Sewer Dist. v.

Garden City Plumbing & Heating, Inc., 2008 MT434, ¶ 22, 347 Mont. 468, 200 P.3d 60. Once themoving party has met its burden, the party opposingsummary judgment must present affidavits or othertestimony containing material facts that raise agenuine issue as to one or more elements of its case.Id., ¶ 54 (citing Klock v. Town of Cascade, 284 Mont.167, 174, 943 P.2d 1262, 1266 (1997)). Conclusorystatements and assertions will not prevent summaryjudgment. Id.

DISCUSSION

In this case, the material facts, none of which aredisputed, are as follows: 1) Section 227 expressly pro-hibits corporations from using their corporate fundsto support or oppose political candidates or politicalparties; 2) Section 227 does not prohibit individuals,unincorporated associations, or the media from usingtheir funds to support or oppose political candidates

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or political parties; 3) Plaintiffs are corporations; 4)Plaintiffs would like to spend corporate funds to pub-licly support or oppose political candidates and/or po-litical parties; and 5) Defendants have the statutoryauthority to prosecute and seek penalties againstPlaintiffs if Plaintiffs violate Section 227.

The Court notes that currently 26 states allowindependent expenditures by for-profit corporations.Citizens United, 130 S. Ct. at 908-08, 175 L. Ed. at793.

The Court further notes that Section 227 wasenacted as the Corrupt Practices Act of 1912. Initia-tive Act, Nov. 1912, Sec. 25, 1913 Mont. Laws at 604.The impetus for the passage of the Corrupt PracticesAct by initiative in 1912 was the activities of Mon-tana’s “Copper Kings.” In this regard, the Court hasbeen favored *5 with the affidavit of Dr. Harry Fritz,

a former professor at the University of Montana. Dr.1

Fritz notes that “[i]n 1900, a Committee of UnitedStates Senate Committee on Privileges and Elections‘expressed horror at the amount of money which hadbeen poured into politics in Montana in electionsfrom 1888 onward’ and ‘its concern with respect tothe general aura of corruption in Montana.’ K. RossToole; Montana: An Uncommon Land, 190 (Univ.Okla. 1959).” (State’s Combined Br. Opp’n Pl.s’ Mot.Summ. J. & Supporting State’s Mot. Summ. J.,Attach. Fritz Aff., ¶ 14.) Montana’s Corrupt PracticesAct grew out of and reflected Montanan’s opposition

It should be noted that the author of this opinion was1

a student of Dr. Fritz in 1971 and 1972, and then, as now,the Court finds Dr. Fritz’s comments to be most helpful.

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and intolerance to abuses that grew out of the cor-porate revolution of the late 19th century, includingthe power wielded by the “Copper Kings” of Montanaand other powerful corporate interests. (Id., ¶ 5.) Dr.Fritz further noted that “[c]orporate interests con-trolled by the Copper Kings dominated political de-bate in Montana, and drowned out Montanan’s ownvoices in the political process.” (Id., ¶ 18.) Dr. Fritznoted that the initiative of 1912 was prompted by theactions of the Amalgamated Copper Company in1903 when, after an unfavorable court ruling, thecompany threw 80 percent of the State’s wage earn-ers on the street until a bill favorable to Amalgam-ated was passed. According to Fritz, this was “nakedcorporate blackmail of a sovereign state and Montan-ans never forgot it.” (Id., ¶ 16.)

At issue in this case is whether Section 227 vio-lates the First Amendment to the United States Con-stitution and Article II, section 7, of the MontanaConstitution. The First Amendment to the UnitedStates Constitution provides:

Congress shall make no law respecting anestablishment of religion, or prohibiting thefree exercise thereof; or abridging the *6 free-

dom of speech, or of the press; or the right ofthe people peaceably to assemble, and to peti-tion the Government for a redress of griev-ances.

Similarly, Article II, section 7, of the Montana Con-stitution provides:

No law shall be passed impairing the freedomof speech or expression. Every person shall befree to speak or publish whatever he will on

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any subject, being responsible for all abuse ofthat liberty. In all suits and prosecutions forlibel or slander the truth thereof may be givenin evidence; and the jury, under the directionof the court, shall determine the law and thefacts.

The various states are bound by the guaranteesof the First Amendment through the due processclause of the Fourteenth Amendment to the UnitedStates Constitution. Gitlow v. New York, 268 U.S.652, 666, 45 S. Ct. 625, 630 (1925); City of Whitefishv. O’Shaughnessy, 216 Mont. 433,438, 704 P.2d 1021,1024 (1985). In this case, as noted above, Plaintiffsare alleging that Section 227 violates the Montanaand United States Constitutions.

“We start with the presumption that all legisla-tive enactments comply with Montana’s Constitu-tion.” Bean v. State, 2008 MT 67, ¶ 12, 342 Mont. 85,179 P.3d 524 (citations omitted). The party challeng-ing a statute bears the burden of establishing thestatute’s unconstitutionality beyond a reasonabledoubt. Id. We construe statutes narrowly to avoid afinding of unconstitutionality and resolve any ques-tions of constitutionality in favor of the statute. Id.;Disability Rights Mont. v. State, 2009 MT 100, ¶ 18,350 Mont. 101, 207 P.3d 1092 (citing Bean, ¶ 12).

If it is found that Section 227 burdens speech,that statute will be subject to strict scrutiny. Strictscrutiny requires the government to prove that therestriction “furthers a compelling interest and is nar-rowly tailored to achieve that interest.” CitizensUnited, 130 S. Ct. at 898, 175 L. Ed. at 782 (quotingFed. Election Comm’n v. Wis. Right to Life, 551 U.S.

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449, 464, 127 S. Ct. 2652 (2007)).

*7 The first issue the Court must address is

whether Section 13-35-227(1), MCA, burdens speechthat is protected by the First Amendment. In Citi-zens United, the United States Supreme Court heldthat federal prohibition on independent expendituresof corporations is a ban on speech. “As a restrictionon the amount of money a person or group can spendon political communication during a campaign, thatstatute necessarily reduces the quantity of expres-sion by restricting the number of issues discussed,the depth of their exploration, and the size of theaudience reached.” Buckly v. Valeo, 424 U.S. 1, 19,96 S. Ct. 612, 635 (1976). In Citizens United, theSupreme Court went on to note:

Speech is an essential mechanism of democ-racy for it is the means to hold officials ac-countable to the people. . . . The right of citi-zens to inquire, to hear, to speak, and to useinformation to reach consensus is a precondi-tion to enlightened self-government and a ne-cessary means to protect it. The First Amend-ment “has its fullest and most urgent applica-tion to speech uttered during an campaign forpolitical office.”

Citzens United, 130 S. Ct. at 898, 175 L. Ed. at 781-82. (quoting Eu v. San Francisco County DemocraticCentral Comm., 489 U.S. 214, 223, 109 S. Ct. 1013,103 L. Ed. 2d 271 (1989) (other citation omitted).

By taking the right to speak from some andgiving it to others, the Government deprivesthe disadvantaged person or class of the rightto use speech to strive to establish worth,

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standing, and respect for the speaker’s voice.The Government may not by these means de-prive the public of the right and privilege todetermine for itself what speech and speakersare worthy of consideration. Citizens United,130 S. Ct. at 899, 175 L. Ed. at 782.

In Citizens United, the United States SupremeCourt was dealing with 2 U.S.C. § 441b. That provi-sion was part of a statutory scheme that forbidindependent corporate contributions to candidates 30days prior to a primary and 60 days prior to a gen-eral election. It is important to note here that Section227 is even stricter in that it *8 at no time autho-

rizes the expenditure of independent corporate fundson behalf of a candidate.

The speech here at question emanates from acorporation. Citizens United, 130 S. Ct. at 900, 175L. Ed. at 784; Mont. Auto. Assn. v. Greely, 193 Mont.378, 388, 632 P.2d 300, 305 (1981). There is noquestion that this corporate-protected politicalspeech is impacted by Section 227. A similar restric-tion before the United States Supreme Court in Citi-zens United was held to be a “ban on speech.” CitzensUnited, 130 S. Ct. at 898, 175 L. Ed. at 781.

The State suggests that the burden placed oncorporate speech as a result of Section 227 is mini-mal. First, the State suggests that corporations couldcreate a political action committee (PAC) or a segre-gated account to make independent expenditures.However, the Supreme Court in Citizens United heldthat “Section 441b is a ban on corporate speech not-withstanding the fact that a PAC created by a cor-poration can still speak. A PAC is a separate associa-

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tion from the corporation. So the PAC exemption. . . does not allow corporations to speak. CitizensUnited, 130 S. Ct. at 897175 L. Ed. at 780. Also, asnoted by the Ninth Circuit Court in Argenbright,“[t]here is no question that a law requiring corpora-tions to make independent expenditures (even forcandidates) through a segregated fund burdens cor-porate expression.” Argenbright, 266 F.3d at 1057.

The Court also has to reject the State’s suggestionthat corporations can lobby elected officials after anelection in order to have their voices heard. Obvious-ly, lobbying occurs after an election and is no substi-tute for allowing free expression during an election.

The State also suggests that Plaintiffs in this caseare not particularly burdened by this statute. TheState points to MSSA as an example. According tothe *9 State, as an incorporated voluntary associa-

tion, MSSA is free to spend member dues on inde-pendent expenditures from its corporate treasury.(State’s Combined Br. Opp’n Pl.s’ Mot. Summ. J. &Supporting State’s Mot. Summ. J., Attach. UnsworthAff., ¶ 15.) Further, the State suggests that Cham-pion Painting can speak because it is a sole propri-etorship. However, there is nothing in Section 227that specifically exempts either of these corporationsfrom the prohibitions of the statute. The State thenattempts to portray WTP as an unsavory entity up tono good. That may or may not be the case, but it isclear to this Court that Section 227 applies to WTP.Whatever one might think of WTP, this Court doesnot have the power to take away its First Amend-ment right to support or oppose political candidatesof its choice.

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The Court, then, concludes that the First Amend-ment to the United States Constitution protects thepolitical speech of corporations, including their rightto make independent expenditures to support oroppose political candidates or parties. Like Section441b faced by the United States Supreme Court inCitizens United, Section 227 restricts corporate poli-tical speech and favors some speakers over corpora-tions. Thus, Section 227 abridges Plaintiffs’ right toengage in political speech.

The Court has earlier noted that upon such ashowing, the burden shifts to Defendants to showthat the restriction is justified by a compelling stateinterest and is narrowly tailored to achieve that in-terest. This Court concludes that there has been nocompelling interest shown to justify the abridgmentof Plaintiffs’ First Amendment rights; further, Sec-tion 227 is not narrowly tailored to meet any interestclaimed to be compelling.

First, the State claims that an anti-corruption in-terest is sufficient to justify the restriction on Plain-tiffs’ First Amendment rights. The Court has alreadyquoted portions of the affidavit submitted by Dr.Fritz showing the pernicious *10 influence of the

Copper Kings and their various corporate alter egos.However, the Copper Kings are a long time gone totheir tombs. Further, the Supreme Court in CitizensUnited addressed this very concern. In that case, theSupreme Court held that the anti-corruption interestis not sufficient to displace the speech here in ques-tion, noting that 26 states do not restrict independ-ent expenditures by for-profit corporations. CitizensUnited, 130 S. Ct. at 908-09175 L. Ed. at 793. In so

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holding, the Supreme Court drew a distinction be-tween the appearance of corruption that could arisefrom unlimited money funneled directly to candi-dates as opposed to independent expenditures. Fur-ther, even if the corruption interest was found to bea compelling one, Section 227 is not narrowly tai-lored to meet that interest. The statute, for example,does not extend to media corporations, unincorpo-rated associations, or wealthy individuals. Further,it applies to any expenditure regardless of its size.

The State’s attempt to justify Section 227 as atool to protect dissenting shareholders was rejectedby the decision in Citizens United. Citizens United,130 S. Ct. at 911, 175 L. Ed. at 796. Citizens Unitedrejected this rationale due to the fact that the statutethere in question, as is the case with the statutehere, fails to allow independent expenditures even ifthe shareholders unanimously agree on an issue.Further, shareholders are capable of protectingthemselves through corporate democracy. Also, Sec-tion 227 is not narrowly tailored to address theshareholder interest. It is not limited to corporationswith more than one shareholder. It also appliesregardless of whether the shareholders unanimouslyagree to support or oppose a candidate.

Next, the State suggests that an “anti-distortioninterest” justifies Section 227. Of concern here is thepossible distorting effect of immense aggregations ofmoney. The anti-distortion interest was recognizedby the United States Supreme *11 Court in Austin v.

Mich. State Chamber of Commerce, 494 U.S. 652, 110S. Ct. 1391 (1990). However, Austin was expresslyoverruled by the Court in Citizens United. Citizens

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United, 130 S. Ct. at 913, 175 L. Ed. at 798. Again,even if this anti-distortion interest were availableafter Citizens United, Section 227 does not appear tobe narrowly tailored to meet that interest. Forexample, it applies to all corporations regardless ofsize or wealth, or whether the corporation is one thatis non-profit.

The State also asserts an interest in preventingcircumvention of its disclosure laws as justifying anyspeech restrictions occasioned by Section 227. How-ever, the answer to this problem is not a ban onspeech, but the enactment of more comprehensivedisclosure laws.

The State suggests that if the Court finds Section227 unconstitutional as it applies to independent ex-penditures, the Court should leave the predecessorto Section 13-35-227, MCA, in tact. For this proposi-tion, the State cites State ex rel. Woodahl v. Dist. Ct.,162 Mont. 283, 511 P.2d 318 (1973). The Court findsWoodahl to be of limited use, as it has not since beencited by the Montana Supreme Court as supportingthe proposition here suggested by the State. Inaddition, Woodahl addressed a fact situation uniqueto that case. The issue there was whether a statutewas even constitutional when it was passed. That isnot the situation here. No one in this case is suggest-ing that Section 227 was unconstitutional when itwas passed. Section 227 became unconstitutionalonly after the Citizens United case was decided.Therefore, Woodahl has no application to the factspresently before this Court.

Thus, this Court concludes that there is no com-pelling state interest to support Section 227 and,

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even if there were, it appears to the Court that Sec-tion 227 is not narrowly tailored to achieve the in-terests asserted.

*12 Therefore, the Court declares that Section 13-

35-227(1), MCA, as it pertains to independent cor-porate expenditures, is unconstitutional and unen-forceable due to the operation of the First Amend-ment to the United States Constitution. Since Sec-tion 227 violates the First Amendment to the UnitedStates Constitution, this Court sees no need to de-cide whether Section 227 violates the Montana Con-stitution. It should here be noted that this ruling hasno effect on direct corporate contributions to candi-dates or to any existing or future disclosure lawsthat might be enacted.

The Court should also note that since CitizensUnited was issued, at least two other states haveconsidered this issue. On August 9, 2010, the Wis-consin Attorney General ruled as unconstitutionalWisconsin’s Statute 11.38(1)(a)(i). See Wis. Op. Att’yGen 05-10. Further, Minnesota statute Section 211B.15(3) was found wanting in Minn. Chamber of Com-merce v. Gaertner, 2010 U.S. Dist. LEXIS 51334(D.C. MN 2010).

This Court has spent some time analyzing itsdecision. However, the Court has to agree withUnited States District Court Judge Paul Magnusonin Minn. Chamber of Commerce. In his decision,Judge Magnuson stated “[t]he Supreme Court’s de-cision in Citizens United is unequivocal: the govern-ment may not prohibit independent and indirectcorporate expenditures on political speech. Subdivi-sion 3 does just that.” Minn. Chamber of Commerce,

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2010 U.S. Dist. LEXIS at 10.

ATTORNEY FEES AND COSTS

Plaintiffs seek their attorney fees and costs.Generally, Montana follows the American Rulewhich provides that a party in a civil action isgenerally not entitled to attorney fees absent specificcontractual or statutory provision. Montanans forResponsible Use of the Sch. Trust v. State (Montrust),1999 MT 263, ¶ 62, 296 Mont. 402, 989 P.2d 800.However, the Montana Supreme Court has adoptedthe Common*13 Fund Doctrine which provides that

when a party, through litigation, creates, reserves, orincreases a fund, others sharing in the fund mustbear a portion of the litigation costs including areasonable attorney fee. Montrust, ¶ 64. Also avail-able is the private attorney general doctrine and itsthree-part inquiry as follows: 1) the strength or a so-cietal importance of the public policy vindicated bythe litigation; 2) the necessity for private enforce-ment and the magnitude of the resultant burden onthe plaintiff; and 3) the number of people standing tobenefit from the decision. Montrust, ¶ 66.

Clearly, the issues here are very important andare grounded in the United States Constitution.Next, since the State is required to defend the sta-tute in the present case, private enforcement of theseimportant constitutional rights was required. Thefinal question is whether there is a large number ofpeople standing to benefit from the decision. On thispoint, the Court is not so sure. While the Plaintiffcorporations will certainly benefit from this rulingthere is no reasonable way of knowing “the numberof people” standing to benefit from this decision.

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Therefore, the Court will not award attorney feesunder the private attorney general doctrine.

Further, the Court does not find that it is neces-sary and proper to award attorney fees under theUniform Declaratory Judgment Act, Section 27-8-313, MCA. While the Court may have authority toaward attorney fees under the Declaratory JudgmentAct, it does not feel it necessary and proper to do soin this case. The State’s arguments were made ingood faith and were supported by briefs that weremeticulously researched, well written, and wellargued.

CONCLUSION

Based on the above, IT IS HEREBY ORDERED,ADJUDGED, AND DECREED as follows:

1. Plaintiffs’ motion for summary judgment isGRANTED. *14

2. Defendants’ motion for summary judgment isDENIED.

3. Section 13-35-227(1), MCA, insofar as it pre-vents corporations from making independent expen-ditures to support or oppose political candidates orpolitical parties, is declared unconstitutional.

4. Defendants are permanently enjoined fromenforcing the expenditure prohibition found inSection 13-35-227(1), MCA.

5. Plaintiffs are awarded their costs, but not theirattorney fees.

DATED this 18 day of October 2010.

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/S/ Jeffrey M. Sherlock

JEFFREY M. SHERLOCKDistrict Court Judge

pcs: Margot E. BargSteve Bullock/Anthony Johnstone/James P. Molloy

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[Filed Jan. 31, 2011]

MONTANA FIRST JUDICIAL DISTRICTCOURT LEWIS AND CLARK COUNTY

WESTERN TRADITIONPARTNERSHIP, INC., acorporation registered inthe State of Montana, andCHAMPION PAINTING,INC., a Montana corpora-tion; MONTANASHOOTING SPORTS AS-SOCIATION, INC., aMontana corporation,

Plaintiffs,

v.

ATTORNEY GENERAL ofthe State of Montana, andCOMMISSIONER OF PO-LITICAL PRACTICES,

Defendants.

Cause No.BDV-2010-238

JUDGMENT

By Order dated October 18, 2010, hereby incorpo-rated by reference, this Court granted Plaintiffs’Motion for Summary Judgment, and Denied Defen-dants’ Motion for Summary Judgment. The Courtfurther denied Plaintiffs’ request for attorneys fees,but granted Plaintiffs’ request for costs.

ACCORDINGLY,

JUDGMENT is hereby entered in favor of Plain-tiffs and against Defendants. Plaintiffs are awarded

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their costs in the amount of $1,544.80.

DATED this 31 day of February, 2011.

/S/ Jeffrey M. Sherlock

HON. JEFFREY M. SHERLOCKDistrict Court Judge

c: Anthony Johnstone & James P. MolloyMargot Barg

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IN THE SUPREME COURT OF THE STATEOF MONTANA

No. DA 11-0081

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WESTERN TRADITIONPARTNERSHIP, INC., a corpo-ration registered in the State ofMontana, and CHAMPIONPAINTING, INC., a Montanacorporation, MONTANASHOOTING SPORTS ASSOCI-ATION, INC., a Montana cor-poration,

Plaintiffs, Appellees, andCross-Appellants

v.

ATTORNEY GENERAL of theState of Montana, and COM-MISSIONER OF THE COM-MISSION FOR POLITICALPRACTICES,

Defendants, Appellants and Cross-Appellees.

FILEDFeb 07 2012

Ed SmithClerk of the

Supreme CourtState of Montana

ORDER

____________

Western Tradition Partnership, Inc., et al., havemoved for a stay of this Court’s decision and judg-ment reversing the District Court and granting sum-mary judgment to Appellants. They seek to stay thisCourt’s decision herein pending their petition for awrit of certiorari to the Supreme Court of the United

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States and resolution of all matters related to thatpetition. The Appellants have filed a response object-ing to the motion to stay.

The Court, having reviewed the motion to stayand the response,

IT IS ORDERED that the motion to stay isDENIED.

The Clerk is directed to provide copies of thisorder to all counsel of record.

DATED this 7th day of February, 2012.

/S/ Mike McGrathChief Justice

/S/ Patricia Cotter

/S/ Michael Wheat

/S/ Brian Morris

/S/ James Rice

While maintaining our respective dissents, we havejoined the order denying the motion for stay, in orderthat the Appellees and Cross-Appellants can proceedwith their appeal to the United States SupremeCourt.

/S/ James Nelson

/S/ Beth Baker

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[Counsel name omitted] [Filed April 15, 2010]

MONTANA FIRST JUDICIAL DISTRICT,LEWIS AND CLARK COUNTY, STATE OF

MONTANA

WESTERN TRADITIONPARTNERSHIP, Inc., a cor-poration registered in theState of Montana, CHAM-PION PAINTING, INC., aMontana Corporation, MON-TANA SHOOTING SPORTSASSOCIATION, INC., aMontana Corporation,

Plaintiffs,

vs.

ATTORNEY GENERAL ofthe State of Montana, andCOMMISSIONER OF THECOMMISSION FOR POLITI-CAL PRACTICES,

Defendants.

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Cause No. BDV-2010-238

FIRSTAMENDEDCOMPLAINT

PURSUANT TO Rule 15(a) of the Montana Rulesof Civil Procedure, comes now the Plaintiffs WesternTradition Partnership, Inc., Champion Painting,Inc., and Montana Shooting Sports Association, Inc.,and files this First Amendment Complaint againstDefendants, as follows:

INTRODUCTION

1.This is a proceeding for declaratory relief under

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the Unifonn Declaratory Judgments Act, § 27-8-101,et seq., MCA, for the purpose of determining the con-stitutionality of several statutes, or sections thereof,within the Election and Campaign Practices andCriminal Provisions, § 13-35-101, et. seq., MCA. Thisis also a proceeding under 42 U.S.C. § 1983 to pre-vent the violation of civil rights under color of statelaw. Finally, this is a proceeding for a preliminaryinjunction under § 27-19-101, et. seq., MCA, to im-mediately prevent the Defendants from restrictingthe Plaintiffs’ constitutional right to engage in lawfulpolitical speech.

THE PLAINTIFFS

2. The Plaintiff Western Tradition Partnership,Inc. (“Western Tradition”) is a nonprofit corporationregistered with the Montana Secretary of State andorganized under the laws of the State of Colorado.

3. Western Tradition is a grassroots organizationdedicated to “Rediscovering America’s National Trea-sures” by promoting responsible natural resource de-velopment, private property rights, and multiple useof and access to public lands. One method employedby Western Tradition to promote its agenda is to sur-vey federal, state, county, and local level politicalcandidates, including candidates in Montana, to de-termine candidates’ support or opposition to numer-ous issues. These issues include, but are not limitedto, learning about candidates’ positions on sponsor-ing free market solutions on energy, land, and waterissues, lowering utility costs, thinning dying foreststo prevent fire and provide jobs, and reforming thelegal process to prevent frivolous lawsuits by certaingroups. The results of the survey are then reported

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to its members, including members in Montana,through polling, direct mail, and phone campaigns,in order to educate members about the candidates’positions. If it could, Western Tradition would alsouse corporate funds to engage in polling, direct mail,advertising and phone campaigns that publicly sup-port or oppose candidates. Furthermore, WesternTradition would not only communicate its support oropposition of candidates to its Montana members,but also to voters in the general public. Such corpo-rate funds would be used before the June 8,2010 pri-mary election and the November 2, 2010 generalelection.

4. The Plaintiff Champion Painting, Inc. (“Cham-pion Painting”) is a for-profit close corporation or-ganized under the laws of the State of Montana. Itsprincipal place of business is in Bozeman, Montana.

5. Champion Painting’s activities consist of pro-viding painting services to individuals and busi-nesses. The business is owned and managed by KenChampion. Mr. Champion is politically active in sup-porting and opposing political candidates and issueson both the local and state level. He has been andcontinues to be an active member of the GallatinCounty Campaign for Liberty, which advocates thereturn of the constitutional republic. He has alsobeen and continues to be a member of the BozemanTea Party, which, among other things, seeks to edu-cate the public about the consequences of unre-strained government spending. In addition to theseissues, as a small business owner Mr. Champion isalso concerned with the way inflation, taxation, andspending are exploiting, impacting, and bankrupting

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America and Montana’s small businesses. Thus,Champion Painting intends to spend corporate fundsto educate the citizens of Montana and Bozemanabout political candidates and ballot issues that willeither positively or negatively impact Montana’ssmall businesses, and Champion Painting intends topublicly support or oppose candidates and issuesrelating to Montana’s small businesses. The corpo-rate funds will be spent to purchase TV spots andradio advertisements, and to create and distributebrochures and fliers before the June 8, 2010 primaryelection and the November 2,2010 general election.

6. The Plaintiff Montana Shooting Sports Associa-tion, Inc. (“MSSA”) is a non-profit corporation regis-tered and organized under the laws of the State ofMontana.

7. The purpose of MSSA is to support and pro-mote firearm safety, the shooting sports, hunting,firearm collecting, and personal protection using fire-arms; to educate its members concerning shooting,firearms, safety, hunting, and the right to keep andbear arms; to own and/or manage one more shootingfacilities for the use of its members and/or others; toresearch, consider, and provide comment on publicpolicy and issues affecting the association and itsmembers; and to conduct such other activities asserves the needs of its members. In order to achieveits purposes, MSSA often identifies issues for theMontana Legislature to consider, and its efforts havebeen instrumental in the passage of numerous Mon-tana statutes. To learn more about the Montana Le-gislature and Legislative candidates, MSSA pub-lishes a Legislative Candidate Questionnaire

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(“LCQ”) on the Internet for candidates to completeand submit to MSSA. The LCQ identifies issues andpotential legislation related to MSSA’s purposes, andasks whether the candidate will sponsor, cosponsor,support, be neutral, or oppose those issues and/orlegislation. MSSA uses the LCQ, in conjunction withvoting records and other information, to evaluatecandidates for the Montana Legislature. In order tosupport or oppose the candidates it evaluates, MSSAmust currently go through an expensive and complexstate political action committee. If it could, MSSAwould instead use its corporate funds to directlysupport or oppose candidates and issues via directmail, newspaper, and radio advertising to its mem-bers and to the general public. Such corporate fundswould be used before the June 8, 2010 primary elec-tion and the November 2, 2010 general election.

THE UNCONSTITUTIONAL RESTRICTIONON POLITICAL SPEECH

8. Section 13-35-227, MCA, prohibits the Plain-tiffs from expending corporate funds to engage inpolitical speech, and it subjects the Plaintiffs to civilpenalties if they do. The statute reads:

(1) A corporation may not make a contribu-tion or an expenditure in connectionwith a candidate or a political com-mittee that supports or opposes a can-didate or a political party.

(2) A person, candidate, or political committeemay not accept or receive a corporatecontribution described in subsection (1).

(3) This section does not prohibit the estab-lishment or administration of a separate,

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segregated fund to be used for making po-litical contributions or expenditures if thefund consists only of voluntary contribu-tions solicited from an individual who is ashareholder, employee, or member of thecorporation.

(4) A person who violates this section is sub-ject to the civil penalty provision of 13-37-128.

(Emphasis added.)

9. An “expenditure” is defined in § 13-1-101(11),MCA, as follows:

(a) “Expenditure” means a purchase, pay-ment, distribution, loan, advance, promise,pledge, or gift of money or anything ofvalue made for the purpose of influencingthe results of an election.

(b) “Expenditure” does not mean:

(i) services, food, or lodging provided in amanner that they are not contributionsunder subsection (7)

(ii) payments by a candidate for a filing feeor for personal travel expenses, food,clothing, lodging, or personal necessitiesfor the candidate and the candidate’sfamily;

(iii) the cost of any bona fide news story,commentary, or editorial distributedthrough the facilities of any broadcast-ing station, newspaper, magazine, orother periodical publication of generalcirculation; or

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(iv) the cost of any communication by anymembership organization or corporationto its members or stockholders or em-ployees.

10. Pursuant to Administrative Rules of Mon-tana, Rule 44.10.323(3), “expenditure” also includesan “independent expenditure,” which is defined as:

“Independent expenditure” means an expen-diture for communications expressly advo-cating the success or defeat of a candidate orballot issue which is not made with thecooperation or prior consent of or in consul-tation with, or at the request or suggestionof, a candidate or political committee or anagent of a candidate or political committee.An independent expenditure shall be re-ported as provided in ARM 44.10.531.

11. An “election” extends to “a general, regular,special, or primary election held pursuant to therequirements of state law, regardless of the time orpurpose.” § 13-1-101 (8), MCA.

12. ‘’‘Person’ means an individual, corporation,association, firm, partnership, cooperative, commit-tee, club, union, or other organization or group ofindividuals or a candidate as defined in subsection(6).” § 13-1-101(20), MCA.

13. The relevant portion of the penalty provisionset forth in § 13-37-128 reads:

(2) A person who makes or receives a contri-bution or expenditure in violation of 13-35-227, 13-35-228, or this chapter or whoviolates 13-35-226 is liable in a civil action

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brought by the commissioner or a countyattorney pursuant to the provisions out-lined in 13-37-124 and 13-37-125 for anamount up to $500 or three times theamount of the unlawful contribution orexpenditure, whichever is greater.

14. The prohibition against corporate expendi-tures to support or oppose a candidate or politicalparty as set forth § 13-35-227(1), MCA, violates Arti-cle II, § 7 of the Constitution of the State of Montana,and the First Amendment of the Constitution of theUnited States of America, in that it abridges thePlaintiffs’ freedom to engage in political speech.Therefore, the prohibition against corporate expendi-tures as set forth in § 13-35-227(1), MCA, is illegal,unconstitutional, and without force of law.

THE DEFENDANTS

15. Pursuant to § 13-37-125, MCA, and § 13-37-128, MCA, the Attorney General, by and through thecounty attorneys under his supervision, is one of thestate officers charged with the enforcement andadministration of § 13-35-227, MCA. Therefore, theAttorney General has an interest in this proceedingand the issues herein involved.

16. The Attorney General has expressed hisintent to use his power under § 13-37-128, MCA, toenforce § 13-35-227(1), MCA, against corporationswho make such expenditures.

17. Pursuant to § 13-37-111, MCA, and § 13-37-128, MCA, the Commissioner is one of the stateofficers charged with investigating and enforcing §13-35-227, MCA. Pursuant to § 13-37-113, MCA, theCommissioner may also retain attorneys to prosecute

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alleged violations of § 13-35-227, MCA. Therefore,the Commissioner has an interest in this proceedingand the issues herein involved.

18. The current Commissioner has confirmed hisopinion that § 13-35-227, MCA, is valid in its en-tirety. See, http://www.politicalpractices.mt.gov/con-tent/NoticeofCitizensUnitedSupremeCourtDecision,dated March 5,2010, and attached hereto as Exhibit1. In the past the Commissioner has enforced theprohibition against corporate expenditures found in§ 13-35-227(1), MCA.

JURISDICTION AND VENUE

19. Jurisdiction of this Court arises under § 3-5-302, MCA.

20. Venue in Lewis and Clark County is properunder § 25-2-118, MCA; § 25-2-125; MCA, and/or§ 25-2-126, MCA.

COUNT 1

(Declaratory Judgment, § 27-8-101, et. seq.,MCA)

21. The Plaintiffs re-allege all paragraphs withinthis Complaint and incorporate the same by refer-ence as if repeated in their entirety.

22. Pursuant to the Uniform Declaratory Judg-ments Act, § 27-8-101, et seq., MCA, the Plaintiffsseek to determine the rights, status, and other legalrelations between the parties under § 13-35-227(1),MCA, and other applicable law and administrativerules.

23. Article II, § 7 of the Constitution of the Stateof Montana states in part, “No law shall be passedimpairing the freedom of speech or expression. Every

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person shall be free to speak or publish whatever hewill on any subject.”

24. The First Amendment to the Constitution ofthe United States of America states, “Congress shallmake no law respecting the establishment of reli-gion, or prohibiting the free exercise thereof; orabridging the freedom of speech, or of the press; orthe right of the people to peaceably assemble, and topetition the Government for a redress of grievances.”

25. “Speech” includes political speech. In fact,laws that burden political speech are subject to strictscrutiny, which requires the Defendants to provethat the restriction furthers a compelling stateinterest and is narrowly tailored to achieve thatinterest.

26. The laws protecting political speech extend tocorporations: “[P]olitical speech does not lose its FirstAmendment protection ‘simply because its source isa corporation.’” Citizens United v. Federal ElectionCommission,__ S.Ct.__, 2010 WL 83856, *20 (cita-tions omitted).

27. § 13-35-227(1), MCA, infringes upon thePlaintiffs’ political speech freedoms under both theMontana and United States Constitution because§ 13-35-227(1), MCA, prohibits the Plaintiffs (and, infact, all corporations) from making expenditures thatsupport of oppose apolitical candidate or politicalcommittee, thereby limiting and restricting thePlaintiffs’ ability to engage in political speech. Thestatute does not prohibit persons other than corpora-tions (such as individuals, unincorporated busi-nesses, unions, or the media) from making the sameexpenditures and thereby engaging in political

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speech.

28. § 13-35-227(1), MCA, treats corporations dif-ferent from other persons, thereby resulting in theState of Montana’s use of its full power to commandwhere and from what source people get their infor-mation. This is nothing more than unlawful censor-ship.

29. The State of Montana does not have a com-pelling governmental interest for infringing on thePlaintiffs’ lawful political speech freedoms, and § 13-35-227(1), MCA, is not narrowly tailored to achievea compelling state interest.

30. The Plaintiffs pray for relief as set forth inthe Prayer For Relief, below.

COUNT 2

(42 U.S.C. § 1983)

31. The Plaintiffs re-allege all paragraphs withinthis Complaint and incorporate the same by refer-ence as if repeated in their entirety.

32. At all times relevant herein, the conduct ofthe Defendants was subject to Title 42, United StatesCode, § 1983, et. seq., which states:

Every person who under color of any statute,ordinance, regulation, custom, or usage, ofany State or Territory or the District ofColumbia, subjects, or causes to be subjected,any citizen of the United States or other per-son within the jurisdiction thereof to the de-privation of any rights, privileges, or immu-nities secured by the Constitution and laws,shall be liable to the party injured in an ac-tion at law, Suit in equity, or other proper

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proceeding for redress, except that in anyaction brought against a judicial officer foran act or omission taken in such officer’s ju-dicial capacity, injunctive relief shall not begranted unless a declaratory decree was vio-lated or declaratory relief was unavailable.For the purposes of this section, any Act ofCongress applicable exclusively to the Dis-trict of Columbia shall be considered to be astatute of the District of Columbia.

33. The Defendants’ enforcement of § 13-35-227(1), MCA, is a deprivation of the Plaintiffs’ rightsunder the First and Fourteenth Amendments of theUnited States Constitution and is imposed under thecolor of state law in violation of Title 42, UnitedStates Code, § 1983, et seq.

34. The Plaintiffs have been damaged as a resultof their inability to engage in political speechthrough the use of corporate expenditures; and theywill continue to be damaged by the enforcement of§ 13-35-227(1), MCA.

35. The Plaintiffs pray for relief as set forth inthe Prayer For Relief, below.

COUNT 3

(Preliminary Injunction, § 27-19-101, et. seq.MCA)

36. The Plaintiffs re-allege all paragraphs withinthis Complaint and incorporate the same by refer-ence as if repeated in their entirety.

37. The Plaintiffs are materially and adverselyaffected by § 13-35-227(1), MCA, since they cannotspeak out on candidates or issues affecting citizens

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of America and residents of Montana without fear ofbeing penalized by the State of Montana through theenforcement of § 13-35-227(1), MCA, and § 13-37-128, MCA.

38. Plaintiffs will not be allowed to exercise theirconstitutional right to engage in political speech andwill suffer irreparable injury and loss unless theenforcement of § 13-35227(1), MCA, and § 13-37-128,1), MCA, and § 13-37-128, MCA are restrained pend-ing final adjudication and determination of the mat-ters and issues of the matters herein set forth. Plain-tiffs have no adequate remedy other than by obtain-ing injunctive relief.

39. The Plaintiffs pray for relief as set forth inthe Prayer for Relief, below.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiff’s demand judgmentagainst the Defendants as follows:

a. For an order pursuant to § 27-19-201, MCA,restraining and enjoining the Defendants and eachof them, their agents and servants (including, butnot limited to, the county attorneys) from exercisingany of the powers, rights, or duties respecting theban against corporate expenditures as set forth in§13-35-227(1), MCA, including, but not limited to,using § 13-37-128 to enforce such a ban against cor-porate expenditures, pending the final determinationof the issues stated herein;

b. For a judgment declaring that the prohibitionagainst corporate expenditures as set forth in § 13-35-227(1), MCA, violates Article II, § 7, of the Consti-tution of the State of Montana and the First Amend-

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ment of the United States Constitution, and is ille-gal, unconstitutional, and without the force of law;and for attorney fees and other supplemental reliefunder § 27-8-313, MCA, that is necessary andproper;

c. For a judgment declaring that the Plaintiffsare not required to comply with the ban against cor-porate expenditures found in § 13-35-227(1), MCA,since the ban is illegal, unconstitutional, and unen-forceable;

d. For a judgment in favor of the Plaintiff’s ontheir claim under 42 U.S.C. § 1983; and for actual,general, special, compensatory damages in anamount to be determined, plus the costs of thisaction, including attorney fees and costs;

e. For damages, costs, and attorney fees asallowed by law or equity;

f. For any other further relief deemed just andproper by the Court.

Respectfully Submitted this 14th day of April,2010.

/S/ Margot E. BargMargot E. BargAttorney for the Plaintiffs