Montana Supreme Court Campaign finance Decision Affront to the “Rule of Law”?

That’s Allen Dickerson’s claim.  Oh please.  The Montana Supreme Court took Justice Kennedy at his word and looked at the state’s evidence of corruption to justify its law.  That might be wrong—but it is not defying the rule of law.

Want to talk about defying the rule of law?  Look at the district court decision in the Danielczyk case (now on appeal to the 4th Circuit), defying Supreme Court precedent on the constitutionality of limits on corporate contributions to candidates.  (Here‘s the 2d Circuit on that opinion: The Court is aware of United States v. Danielczyk, No. 1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate contributions, based on what it called an ‘inescapable’ expansion of Citizen United’s logic. Id. at *18; Danielczyk, 2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the 100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that the anti-corruption interest is a legitimate justification for campaign contribution restrictions. Citizens United also does not disturb the validity of the anti-circumvention interest. See Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th Cir. Jun. 9, 2011) (concluding that ‘nothing in the explicit holdings or broad reasoning’ of Citizens United invalidates the anti-circumvention interest in the context of contribution limits)”)

In the end, it will be up to the Supreme Court to weigh in in both the Montana case and the question in Danielczyk.

[Disclosure: I am an attorney for the City of San Diego in the Thalheimer case, where the corporate contribution issue is presented.]

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