New Bopp Attack: Montana

The following press release arrived from the James Madison Center via email.

Coalition Files Lawsuit Challenging Montana’s Campaign Finance Law
 Montana residents Doug Lair and Steve Dogiakos, and American Tradition Partnership PAC want to give a couple hundred dollars in contributions to candidates that they like for the Montana State House. Montana, however, limits their contributions to just  $160, which is among the lowest limits in the country. The Lake County Republicans and the Beaverhead County Republicans, meanwhile, just want to make an $800 contribution to Republican candidates running for state office. However, if one of them makes that contribution, the other is not allowed to—even though they are two distinct groups, with separate membership and leadership. Three Montana business corporations—Jake Oil, LLC, JL Oil, LLC, and Champion Painting, Inc.—want to make contributions to candidates, and also to committees that spend money independently of candidates. But Montana law does not allow them to do so, because they are corporations. And John Milanovich, candidate for the Montana House in 2012, would gladly accept contributions from individuals and PACs greater than $160, and also from corporations. But he cannot do so under the law.
 Meanwhile, Montana Right to Life PAC, Sweet Grass Council for Community Integrity, and American Tradition Partnership want to communicate important information to the voters about candidates and their positions on the issues. But under Montana law, they can be subjected to penalties if the State decides that what they say is “false.” Further, if they mention how a candidate voted on a certain issue, the State says that they must also include a disclaimer telling about the candidate’s other votes “on the same issue” if “closely related in time.” But the law doesn’t explain what those terms mean. For instance, if one of these groups discusses a candidate’s vote to raise taxes on corporations, what is the “same issue”? Is it only votes regarding tax increases on corporations? Or is it taxes in general? Or might the “same issue” be the regulation of corporations, whether or not the proposed regulation includes a corporate tax? Nobody knows. And that uncertainty, coupled with the fear that the State might judge their speech “false” and punish them for saying it, makes groups hesitant to speak out about politicians.

Yesterday these Montana citizens said, “Enough is enough,” as they filed a lawsuit challenging the constitutionality of these laws. James Bopp, Jr., the lead attorney for the plaintiffs, said that each of the challenged laws is impermissible under the First Amendment. “The Supreme Court has ruled that corporate political speech is protected by the First Amendment, and you cannot ban political speech just because the speaker is a corporation. Yet, Montana does that,” Mr. Bopp explained. He commented further, “The Founders did not trust government to be the speech police and tell us what we can say, or what we must say. Yet Montana’s false statement law and disclaimer requirement do just that. The First Amendment does not permit this.”

 Mr. Bopp also explained that limits on contributions are only constitutional when they are designed to curb the type of quid pro quo corruption that can take place with large contributions. When limits are not needed to curb corruption they violate the First Amendment. “It’s simply not plausible that a donation of, say, $200 is going to corrupt a candidate. Yet Montana bans it anyway. Nor is it plausible that donations from political parties will corrupt candidates. Yet, Montana says that once one political party has contributed $800 to a candidate, no other political party may make any contribution. These laws do not pass constitutional muster.”
 The plaintiffs will also ask the court to preliminarily enjoin enforcement of these laws. Their documents are available on the James Madison Center website by clicking here: http://www.jamesmadisoncenter.org/cases/09-07-2011/688/.

It would seem to m that the attack on a ban on contributions to corporations would be tough given the Ninth Circuit’s recent ruling in the Thalheimer case.  [Disclosure: I am one of the lawyers for San Diego in that case.]

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