We at MakeNoLaw.org (and at IJ in general) often criticize the courts for not carrying out their constitutional role as a check on the other branches of government, so it’s nice every once in a while to be able to cite an example of a court doing what it is supposed to. That happened in Citizens United, and it just happened yesterday in a state trial court in Helena, Montana.
The case involved a challenge to Montana’s ban on corporations speaking about candidates for state office, a similar ban to the one at issue in Citizens United. The corporate plaintiffs argued that under Citizens United and the First Amendment they had the right to spend money from their general treasuries directly on speech. Just as the federal government did before the Supreme Court, the state argued that an alternative to banning corporations from engaging in independent spending would be to allow them to spend money on their own ads, but to make them do so through heavily regulated PACs. As we discussed recently, a court in Minnesota accepted this approach in another case, and, contrary to Citizens United, ended up requiring corporations to speak through PACs.
Happily, the Montana court rejected this approach and took the Supreme Court’s discussion of PACs in Citizens United seriously. Quoting the Court’s statement that “[a] PAC is a separate association from the corporation” the court ruled that subjecting a corporation to PAC burdens violates the First Amendment.
Citizens United was not a complicated case, and yet already some courts have misapplied it. It’s nice to see that some courts are getting it right, but the battle over free speech during elections is far from over.