After Montana, the Next Frontier

The question everyone seems to be asking: what will the Supreme Court’s Montana decision (American Tradition Partnership, Inc. v. Bullock) mean in other states and localities?  On the one hand, the direct legal impact may be little.  Many jurisdictions had already adjusted their laws or regulations following Citizens United.  But, psychologically, at least, reformers today must feel a bit more constrained.  And groups wishing to put their views across through independent campaign ads must feel a little more empowered.  And everyone should understand that the Citizens United era won’t be ending any time soon. As for other effects, new legal challenges will certainly be spawned.  Here are a few possible examples:

• New Jersey.   The Montana result means that corporate political spending curbs cannot be justified by the factual record in a particular state.  Is a legislative record made in support of special regulation of a particular industry really any different?  New Jersey completely bans political contributions by corporations in regulated industries, including utilities, banks, and casinos.  Might these prohibitions be vulnerable as not narrowly tailored to protect against quid pro quo corruption?

• New York State.  The $5,000 annual aggregate cap on corporate political spending is clearly unconstitutional as applied to independent expenditures.  But what of the political contributions that are also subject to that cap?  Citizens United protects corporate political speakers against the disparate treatment.  So how can a $5,000 aggregate limit for corporations remain valid when the comparable aggregate limit for individuals is $150,000?

• New York City.   The Supreme Court’s approach to independent spending in state elections is a national application grounded in the federal statutory concept of independent expenditures.  Given this starting point, how much leeway do local jurisdictions have in defining “non-independence” (a/k/a “coordination”)?  For example, would it be constitutional to subject a corporate advertisement supporting a candidate’s position on public education spending to an in-kind contribution limit simply because the CEO had lobbied that candidate on an unrelated economic development question?

Finally, at the most basic and straightforward level, the Montana decision is the removal of the last theoretical barrier: plain and simple, there will be more -- and more -- independent expenditures in state and local elections.