Friday, January 13, 2012

A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART ONE

GILLETTE:  The Montana Supreme Court made the news recently for its decision in Western Tradition Partnership, Inc., v. Attorney General. The decision upholds Montana’s ban on corporate expenditures in favor of or against a political candidate. Eugune Volokh says that this result is directly contrary to Citizens United, the United States Supreme Court opinion that overturned a provision of the McCain-Feingold law that prevented corporations from spending money on independent electioneering within 60 days of a general election (or 30 days of a primary), and will be reversed by the United States Supreme Court. Indeed, the two dissenters in the Montana Supreme Court opinion dissent for that very reason. Dalia Lithwick at Slate also thinks the decision is a thumb in the eye to Citizens United, but in typical Slate faux-contrarian fashion she posits that the Montana Supreme Court ruled the way it did because the justices on the court are elected and they know that Citizens United is not popular with a lot of people.

This lack of popularity stems from the fact that the shorthand description of Citizens United is that corporations are people with the same First Amendment rights that, to borrow a phrase from Stephen Colbert, “people people” have.

What do you think Mr. Torvik?  Is Western Tradition Partnerhship doomed for reversal?  Or is the majority’s decision defensible?

TORVIK:  If Eugene Volokh and Dahlia Lithwick agree that Western Tradition is directly contrary to Citizens United, who am I to disagree?

I would love to defend the decision.  It's often true that seemingly irreconcilable decisions can be squared away by emphasizing minute but legally significant distinctions.  That's lawyering, after all.

But the Montana court doesn't do a very good job of pointing out any meaningful differences.  Frankly, some of its "analysis" is closer to schoolyard taunts.  For example, it notes that the statute was passed 99 years ago and frames the question to be decided as "when  in  the last  99  years  did Montana lose  the  power  or interest  sufficient  to  support  the  statute, if it ever did?"  Obviously, once you see this formulation of the question, you can guess what the answer is going to be. (Flashback to law school: "Was it 98 years ago? 97 years ago? 90 years ago? ...")  And in an analogy on its way to the preordained answer, the court says, "Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines?  We think not."  Careful lawyers might be able to make some distinctions here, between the murder hypo and the campaign finance situation.

I'll give the court credit for one thing—it did resist the urge to make a Hitler analogy.

What do you think?  Did any of the Court's distinctions sing to you?


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