State Political Spending Restrictions: A Question of Constitutionality

The U.S. Supreme Court has before it a certiorari petition in American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court upheld that State’s corporate political spending restriction against a challenge under Citizens United.  In an amicus brief opposing certiorari, 22 states argue that state corporate political speech regulations may serve different governmental interests and are otherwise distinguishable from the federal corporate political spending bans struck down in Citizens United. So, like the initial reports of Mark Twain’s death, would it be a great exaggeration to conclude that state spending restrictions are unconstitutional after Citizens United?  Since the brief was submitted by the New York Attorney General, its characterization of New York law is of particular interest. New York law is described as requiring a corporation to register as or designate a political committee if it makes independent expenditures to support or oppose a candidate.  The brief makes no reference to the separate New York law that imposes a $5,000 annual limit on corporate political expenditures (inclusive of contributions and independent expenditures).  Perhaps this omission stems from the peculiar structure of the New York corporate spending limit statute: while the “PAC exception” allows for unlimited expenditures – by the PAC, the corporation’s contributions to its PAC and to any other political recipient, as well as any other political expenditures it makes, would remain capped at $5,000 in the aggregate per year. New York’s very limited allowance for corporate financial support yields a PAC that is something much less than “super.”  So even if New York’s corporate spending cap is not definitively dead as a constitutional matter, it certainly looks about ready to receive its last rites.