By Mike Sacks
Montana Attorney General Steve Bullock says that he has been so personally involved in the Citizens United sequel soon to be considered by the U.S. Supreme Court that his coworkers say he is the case's "attorney specific."
It is a role Bullock welcomed following the 2010 ruling in Citizens United, which held that "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Bullock, a Democrat, led 26 states in submitting a brief to the Supreme Court for that case, in favor of the federal law that restricted such corporate spending and was ultimately struck down as unconstitutional. He is the top lawyer for Montana, the only state not to abandon its own corporate spending regulations in that decision's wake.
So when an out-of-state conservative interest group now known as American Tradition Partnership brought suit in Montana to topple the state's century-old Corrupt Practices Act as invalid under Citizens United, Bullock took it upon himself to fight back.
"I dove down deep early on when the first challenge came into the case," Bullock told HuffPost. "I've been working with my sleeves rolled up ever since on it."
His legal theory is simple: Montana is different. Contra the U.S. Supreme Court's determination in Citizens United, Bullock asserted that corporate corruption through political spending could and did happen in Montana. The very existence of the Corrupt Practices Act, passed by referendum in 1912 by voters who lost trust in a political system in thrall to the state's mining interests, has served to prove his point. Montana's act, Bullock argues, neither resembles the federal ban on corporate spending nor imposes the burdensome regulations on corporate speakers that the five-justice majority in Citizens United found unconstitutional.
He argued and lost at the district court level, but then prevailed last December at the Montana Supreme Court, which adopted Bullock's positions as its own. In February, American Tradition Partnership convinced the U.S. Supreme Court to block that decision, temporarily reinstating the district court's invalidation of the Corrupt Practices Act as the justices receive more thorough briefing from the parties over whether to take the case.
Meanwhile, American Tradition Partnership has been sending out attack ads to influence the outcome of a Republican legislative election slated for the state's June 5 primaries. The organization, set up as a 501(c)(4), solicits donors by telling them that "we're not required to report the name or the amount of any contribution that we receive" -- effectively sidestepping disclosure requirements that the Supreme Court in Citizens United cited as good-government safeguards in a world of unlimited spending.
Under the Corrupt Practices Act, Bullock says that "we know who's the genie behind the curtain" because a corporation wishing to make independent expenditures must set up a political action committee for contributions from shareholders, employees or members. These state PACs are fundamentally different from the federally-mandated PACs found lacking in Citizens United, argues Bullock.
"The Court referenced the [federal Bipartisan Campaign Reform Act's] felony provisions and said it was prior restraint on speech because of the complexity of the laws," he said. "Ours takes two minutes [to fill out], you can even do it five days after. You don't need to hire lawyers."
"As a result," he said, "we do have a lot of speech -- and a lot of speech from corporate interests."
In the brief Bullock submitted to the U.S. Supreme Court on Friday, opposing American Tradition Partnership's petition to get the state Supreme Court's ruling reversed, Bullock wrote that Montana's law is aimed at "disclosure rather than deterrence." He name-checked Blue Cross Blue Shield of Montana and the Tri-County Beverage Hospitality Association of small businesses as proof that "businesses of all sizes are active in Montana politics."
Bullock nevertheless faces long odds to convince the U.S. Supreme Court to deny American Tradition Partnership's case, let alone rule in his favor. As one of the dissenting justices at the Montana Supreme Court wrote, the Citizens United ruling could not be defied by "slapping a 'Made in Montana' sticker" on all the arguments the U.S. Supreme Court roundly rejected. (This from a man who went on to describe Citizens United "utter nonsense.")
Ultimately, Bullock hopes that if he cannot convince the justices to deny the case, he can at least get them to give it a full round of briefing and oral argument, where he intends to personally stand before the justices. If the U.S. Supreme Court takes up the case, it will likely be argued right around Election Day. By then, Bullock will have weathered his own gubernatorial campaign. And if the Republican attorney general primary -- which has seen a massive uptick in out-of-state corporate spending -- is any indication of the general election, Bullock will arrive in D.C. with a wealth of new real-world evidence for his cause.
American Tradition Partnership, on the other hand, has told the justices that the state court's defiance was so obvious that they should reverse their Montana counterparts without so much as an explanation. Such a summary reversal may be the path of least resistance for a U.S. Supreme Court majority eager to entrench its absolutist position taken two years ago. But the unrelenting criticism against Citizens United will only grow stronger if the justices refuse to roll up their own sleeves and sort through the facts that Bullock dug up.
CORRECTION: An earlier version of this story said federal law struck down in the Supreme Court's Citizens United decision barred some corporate giving related to elections. In fact, it restricted some corporate spending.