webodec3ARCHIVEPreview
Open in TheBrain

ATP WTP v Bullock 2012

disambig

===

AMICUS NEAL KAYAL WHITEHOUSE MCCAIN VS MCCONN

11-1179-Senators-Whitehouse-and-McCain-Cert-Amicus

BRIEF FOR UNITED STATES REPRESENTATIVES ROBERT BRADY, CHRIS VAN HOLLEN, ZOE LOFGREN AND CHARLES GONZALEZ AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

James A. Ahlers Jerica L. Peters PERKINS COIE LLP 2901 N. Central Avenue Suite 2000 Phoenix, Arizona 85012 (602) 351-8000 jahlers@perkinscoie.com jpeters@perkinscoie.com John M. Devaney Counsel of Record Karl J. Sandstrom Brian G. Svoboda Elisabeth C. Frost PERKINS COIE LLP 700 Thirteenth Street, NW Suite 600 Washington, D.C. 20005 (202) 654-6200 jdevaney@perkinscoie.com ksandstrom@perkinscoie.com bsvoboda@perkinscoie.com efrost@perkinscoie.com Counsel for Amici Curiae

BRIEF OF AMICI CURIAE FORMER FEDERAL ELECTION COMMISSION OFFICIALS AND FORMER STATE AND LOCAL ELECTION AND CAMPAIGN FINANCE OFFICIALS IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI SCOTT L. NELSON

PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 SETH P.WAXMAN Counsel of Record RANDOLPH D. MOSS ANNIE L. OWENS WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006 (202) 663-6000 seth.waxman@wilmerhale.com ADDITIONAL COUNSEL LISTED ON INSIDE COVER

ROGER M. WITTEN WILMER CUTLER PICKERING HALE & DORR LLP 399 Park Avenue New York, N.Y. 10022 (212) 230-8800 FRED WERTHEIMER DEMOCRACY 21 1875 I Street, N.W. Suite 500 Washington, D.C. 20005 (202) 429-2008 DONALD J. SIMON SONOSKY, CHAMBERS, SACHSE, ENDRESON & PERRY, LLP 1425 K Street, N.W. Suite 600 Washington, D.C. 20005 (202) 682-0240

NEW

American Tradition Partnership, Inc. v. Bullock

11-1179_cert_reply-1

Docket No.Op. BelowArgumentOpinionVoteAuthorTerm
11-1179Mont. S. Ct.Not ArguedJun 25, 20125-4Per CuriamOT 2011

Holding: Montana’s argument in support of the judgment below was either already rejected in *Citizens United v. FCC* or fails to meaningfully distinguish that case.

Plain English Summary: Ordinarily, the Supreme Court does not decide a case until after it has accepted it for full-scale review, receives written legal arguments, and then holds a public hearing. Now and then, and perhaps as many as nine or ten times each Term, the Court disposes of a case without those formalities: it decides the case very soon after getting the case, usually indicating that the outcome was so predictable that there was no need to engage in full-dress proceedings. That speeded-up procedure is what the Court did on Monday in this case, by a 5-4 vote. The result was to overturn a Montana Supreme Court decision upholding a 1912 voter-approved ban on corporations’ spending of their own money on political campaigns in that state. The Court majority found that state court ruling obviously in conflict with a decision the Supreme Court had issued in January 2010 striking down a similar ban in federal law against corporate spending on politics. The four Justices in dissent conceded that the Supreme Court majority was not ready to take a new look at that 2010 decision, even in a case in which a state’s highest court had found that the state had a history of corrupt corporate influence in its political life.

Judgment: Summarily reversed in a per curiam opinion on June 25, 2012.

SCOTUSblog Coverage

Briefs and Documents

Share

Certiorari-stage documents

IRATE

American Tradition Partnership, Inc., FKA Western Tradition Partnership, Inc., et

al. v. Steve Bullock, Attorney General of Montana 567 U.S. __ (2012)

Per Curiam

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA

No. 11–1179. Decided June 25, 2012

PER CURIAM.

A Montana state law provides that a “corporation may not make . . . an expenditure in

connection with a candidate or a political committee that supports or opposes a candidate or a

political party.” Mont. Code Ann. §13–35–227(1) (2011). The Montana Supreme Court rejected

petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220,

271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar

federal law, holding that “political speech does not lose First Amendment protection simply

because its source is a corporation.” 558 U. S. _, _ (2010) (slip op., at 26) (internal quotation

marks omitted). The question presented in this case is whether the holding of Citizens United

applies to the Montana state law. There can be no serious doubt that it does.See U. S. Const.,

Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already

rejected in Citizens United, or fail to meaningfully distinguish that case.

The petition for certiorari is granted. The judgment of the Supreme Court of Montana is

reversed.

It is so ordered.

JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE

KAGAN join, dissenting.

In Citizens United v. Federal Election Commission, the Court concluded that “independent

expenditures, including those made by corporations, do not give rise to corruption or the

appearance of corruption.” 558 U. S. _, _ (2010) (slip op., at 42). I disagree with the Court’s

hold-ing for the reasons expressed in Justice Stevens’ dissentin that case. As Justice Stevens

explained, “technically independent expenditures can be corrupting in much the same way as

direct contributions.” Id., at _ (slip op., at 67–68). Indeed, Justice Stevens recounted a

“substantial body of evidence” suggesting that “[m]any corporate independent expenditures . . .

had become essentially interchangeable with direct contributions in their capacity to generate

quid pro quo arrangements.” Id., at _ (slip op., at 64–65).

Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not

bar the Montana Supreme Court’s finding, made on the record before it, that

independent expenditures by corporations did in fact lead to corruption or the

appearance of corruption in Montana. Given the history and political landscape in Montana,

that court concluded that the State had a compelling interest in limiting independent

expenditures by corporations. 2011 MT 328, ¶¶ 36–37, 363 Mont. 220, 235–236, 271 P. 3d 1, 2

36–37. Thus, Montana’s experience, like considerable experience elsewhere since the Court’s

decision in Citizens United, casts grave doubt on the Court’s supposition that independent

expenditures do not corrupt or appear to do so.

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider

Citizens United or, at least, its application in this case. But given the Court’s per curiam

disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead

to deny the petition.[huh?]

===

       December 30, 2011 and After: Montana Supreme Court Rules that State Campaign Finance Ban Stands in Spite of ‘Citizens United’ Decision

The Montana Supreme Court rules 5-2 in the case ofWestern Tradition Partnership v. Bullockthat a century-old law prohibits corporate spending in state and federal elections conducted within the state. The ruling seems to challenge the US Supreme Court’s Citizens United ruling (see January 21, 2010). The case stems from a challenge by a “social welfare organization,” Western Tradition Partnership (WTP, which changed its name to American Tradition Partnership after the original lawsuit was filed),joined by two other corporate entities, to Montana’s 1912 Corrupt Practices Act (CPA). The law banned corporate spending in elections, after two out-of-state copper industry magnates attempted to “buy” the Montana legislature by pouring money into the 1894 state elections. The law declares that “corporations may not make… an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” 

The Montana Supreme Court finds that the CPA is needed to ensure the integrity of Montana’s elections, and to make sure that citizens and not corporations are running the state. However, the Court acknowledges that its ruling conflicts with the Citizens United decision, though it says that the Citizens United decision allows for restrictions on corporate political speech if the government can demonstrate that the restrictions are as minimal as possible to achieve a compelling governmental interest. The Montana Court rules that because of Montana’s history of corporate vote-buying and the narrow restrictions of the CPA, the law should stand. It also notes that Western Tradition Partnership argued in its original suit that disclosure laws, as opposed to outright bans, would serve the public interest and guard against corruption; however, the organization is currently involved in another lawsuit in which it argues that those same disclosure laws are unconstitutional restrictions of the freedom of speech. 

[WESTERN TRADITION PARTNERSHIP V. BULLOCK ET AL, 12/30/2011 ; LOS ANGELES TIMES, 1/4/2012; REUTERS, 6/25/2012; OMB WATCH, 6/25/2012; WASHINGTON POST, 6/25/2012;OMB WATCH, 7/10/2012]

Even one of the dissenters, Justice James C. Nelson, disagrees with the Citizens United characterizations that corporations are legally people, writing: “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creatures of government. 

:{

}:

Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.” WTP’s director Donald Ferguson says after the decision that the case hinges on freedom of speech (see January 21, 2010): “The current state law says that if you own a business and you would like to use the resources of the business to speak out about how you see the law, you essentially have to ask prior permission from the state. Under the current regime, the state regulatory agencies and the newspapers basically have a monopoly on information. We’re simply trying to put more free speech in motion.”

*[LOS ANGELES TIMES, 1/4/2012; HUFFINGTON POST, 1/4/2012] 

Legal Scholars Anticipate Montana Ruling to be Overturned - 

Paul Ryan of the Campaign Legal Center calls the Montana high court’s ruling “an antidote to the crabbed view of corruption” displayed in Citizens United. Ryan, like many others, anticipates the US Supreme Court will overturn today’s ruling. [HUFFINGTON POST, 1/4/2012] One of those others is law professor Richard Hasen, who writes: “[I]f the Court were being honest in Citizens United, it would have said something like: ‘We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.’ But the Court didn’t say that, because it would have faced even greater criticism than it already has. So it dressed up its value judgment (no corruption ‘implied in law’) as a factual statement. The Montana Supreme Court called SCOTUS [the US Supreme Court] on this. And when SCOTUS reverses, the disingenuousness of this aspect of CU will be on full display for all.” Hasen is referring to the Court’s finding in Citizens United that independent spending in elections does not legally imply corruption. [RICK HASEN, 1/1/2012] 

Appeal to Supreme Court - Attorneys for WTP and the other corporate plaintiffs will appeal to the US Supreme Court on the grounds that Montana is bound by the Citizens United decision and that the decision applies to state as well as federal elections. Attorney James Bopp, in filing the appeal, will say: “If Montana can ban core political speech because of Montana’s unique characteristics, free speech will be seriously harmed. Speakers will be silenced because of corruption by others over a century ago.” The US Supreme Court will quickly issue a stay of that decision. [REUTERS, 6/25/2012; OMB WATCH, 6/25/2012] 

When the case reaches the US Supreme Court, the name of the plaintiff will change into “American Tradition Partnership,” and the Court’s documentation will reflect that change. The Court will overrule the Montana decision (see June 25, 2012). After the decision, American Tradition Partnership’s Web site will disappear, but the liberal accountability organization SourceWatch will describe the organization’s parent, the American Tradition Institute, as described in the group’s mission statement: “a public policy research and educational foundation… founded in 2009 to help lead the national discussion about environmental issues, including air and water quality and regulation, responsible land use, natural resource management, energy development, property rights, and free-market principles of stewardship.” ATI and its affiliates are pro-development and against expanded environmental regulation, according to SourceWatch’s documentation, made up of “a broader network of groups with close ties to energy interests that have long fought greenhouse gas regulation.” [SOURCEWATCH, 2012]

http://en.wikipedia.org/wiki/Western_Tradition_Partnership,Inc.v._Attorney_General_of_Montana#)] 

Free Exercise Clause (http://en.wikipedia.org/wiki/Free_Exercise_Clause)