Leading a bipartisan coalition of 22 states and the District of Columbia, New York Attorney General Eric T. Schneiderman has filed a brief urging the Supreme Court to uphold state campaign finance laws in the wake of its 2010 Citizens United decision.
In American Tradition Partnership v. Bullock, the Court has been asked to automatically strike down Montana's campaign finance law on the ground that it violates the First Amendment rights of corporations. The Schneiderman-led coalition rejects this position, arguing the states have a compelling interest in regulating corporate spending in state and local elections, and that the Court should not automatically invalidate state campaign finance laws without a full hearing.
“For years, states have been enacting and enforcing laws regulating corporate spending in state and local political campaigns. Applying the Citizens United decision to state and local elections would undermine the principle of accountability, and erode residents’ rights to participate in the electoral process,” said Schneiderman. “For the integrity of our democracy, it would be a grave mistake for the Court to automatically strike down state campaign finance laws.”
The coalition argues that state campaign finance laws in general, and the Montana law in particular, are different in important ways from the federal law that was struck down in Citizens United. The brief explains that state campaign finance laws apply to a wide range of offices -- such as judge, sheriff, and county prosecutor -- that were not before the Court in the earlier case, and that for such offices it is particularly important to avoid any appearance of bias, special access, or influence.
States joining New York on the friend-of-the-court brief are Arkansas, California, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, New Mexico, North Carolina, Rhode Island, Utah, Vermont, Washington, West Virginia, as well as the District of Columbia.
The brief states:
“Petitioners’ challenge to Montana’s election laws asks this Court to address the permissible limits of state regulation of independent corporate expenditures in state and local candidate elections under the First Amendment. Any decision by this Court here will have consequences for state laws across the country. The amici States therefore have a strong interest in the outcome of this case, and a particularly strong interest in opposing petitioners’ request that the Court summarily reverse the decision of Montana’s Supreme Court, based on the Court’s decision two years ago in Citizens United v. FEC.”
Schneiderman and the coalition also explain that states, as compared with the federal government, face a much greater risk that their elections will be dominated by money spent by nonresident corporations. Furthermore, many state campaign finance laws, including Montana's, impose requirements that are far less burdensome than those imposed by the federal law that was earlier considered by the Supreme Court.
For all these reasons, Schneiderman said, the Supreme Court should not assume that its earlier ruling on the federal law automatically invalidates state laws as well. Before considering the validity of a state campaign finance law, Schneiderman contends the court should give the states a full opportunity to be heard on the distinctive features of their laws, and the distinctive problems they face.
The coalition argues that the Montana law can be upheld without reconsidering Citizens United, but that in this case or some other case the Supreme Court should reconsider that decision. Among other things, the brief argues that the Court should reexamine its view in Citizens United that unlimited corporate spending does not create a risk of corruption or the appearance of corruption of legislators and high executive officeholders.
The brief states, “The Court should reexamine the assertion in Citizens United that independent expenditures, no matter their size or circumstances, rarely cause corruption or the appearance of corruption of federal ofﬁceholders, as well as the holding that the federal law at issue in that case could not be supported, in whole or in part, by government interests in preventing distortion of political campaigns and protecting shareholders from the use of corporate funds for political communications they do not support.”
The brief was prepared by Assistant Solicitor General Brian A. Sutherland, Deputy Solicitor General Richard P. Dearing, and New York Solicitor General Barbara D. Underwood.
A copy of the brief in American Tradition Partnership v. Bullock is available online at: www.ag.ny.gov/sites/default/files/press-releases/2012/ATPvBullock-States-Brief-Supporting-Montana.pdf