A decision handed down on December 30, 2011, the Supreme Court of Montana, in Western Tradition Partnership, Inc. v. Attorney General of State, 2011 WL 6888567, ("WTP") might rock the foundation of the Super PACs created by the Citizens United case.   

   Generally the Supremacy Clause of the United States Constitution, Art. III, §2,  means a decision of the United States Supreme Court trumps the highest court of one of the 50 states (or 46 states and four commonwealths). An exception is in the area of a state’s constitutional law. The United States Constitution operates to provide minimal protection to its citizens.  But a state’s constitution may provide greater protection of individual liberty than the Federal Constitution requires.  State v. Brown, 840 N.E.2d 411, 417 (Ind.Ct.App. 2006). A matter that is consistent with the Supremacy Clause, however, is a state’s highest court ruling consistently with U.S. Supreme Court precedent.

   In WTP, the Montana court found distinctions between the facts, but similarities in the precedential cases cited, by Justice Kennedy’s opinion in Citizens United to hold that:

  Citizens United does not compel a conclusion that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional.  Rather, applying the principles in Citizens United it is clear that Montana has a compelling interest to impose the challenged rationally-tailored statutory restrictions. 

2011 WL 6888567 at 14.

   The statute in question "was originally enacted as an initiative by the Montana voters in 1912."  Id. at 1. It provides: "(1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a political party."  Montana Code Annotated, §13-35-227(1). 

   The parties consisted of Champion Painting, Inc.: "a single proprietor painting and drywall business with no employees or members."  It owner "is personally active in county and state politics, supporting and opposing candidates through blogs, letters to the editor, and speeches.  Champion states that he wants to speak as a spokesman for his corporation..."  WL 6888567 at 2. "Western Tradition Partnership is an entity incorporated in Colorado in 2008 and registered to do business in Montana.  WTP reveals no more than that about itself in this case.  Evidence presented by the State in District Court and not refuted by WTP is that its purpose is to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections. WTP seeks to make unlimited expenditures in Montana from these anonymous funding sources."  Id.

   I will have to wrap up for now. I will try to continue tomorrow. But in Citizens United, Justice Kennedy "clearly endorsed an analysis of restrictions on speech, placing the burden on the government to establish a compelling interest. Citizens United, 130 S.Ct. at 898. Here the government met that burden."  Id. at 5.

   The U.S. Supreme Court has held that organizations "like WTP that act as conduits for anonymous spending by others represent a threat to ‘the political marketplace.’" Id. at 6, citing to Federal Election Commission v. Mass. Citizens for Life, Inc., 479 U.S. 238, 264, 107 S.Ct. 616, 631 (1986). 

   We need only look at the travesty of expenditures in Iowa over the last few weeks to understand the folly of Citizens United. Mitt Romney’s campaign spent on its official televisions and positive ads about $1.5 million. He turned a smiling, happy face to the electorate. "Restore Our Future" is a Super PAC that is Romney’s campaign. A few weeks ago, in an interview, he said he could tell it to turn off its ads. Well, by statute, he can’t; not and have it maintain its status as a 501(c)(4) corporation, from which all its benefits flow. "Restore Our Future" spent $2.8 million in attack ads for Romney against Newt Gingrich. The ads were designed by the same fellow that gave us the Willie Horton ads in 1988.

   A commentator last night asked, "Are any of the facts in those attack ads inaccurate?" I would raise a couple of responses—that no one raised last night. First, as Norman Mailer testified in testimony during the trial of the Chicago Seven (or Eight, if one includes Bobby Seale), the facts are nothing without their nuances. High-tech TV ads add nuances with far more effect than simple recitations of fact. Second, we need ACCOUNTABILITY (and yes, I know that, in the internet age, I just shouted). If Romney and/or his campaign is/are responsible for running these negative ads, the voters have a right to know. The ads appear to have had a significant impact on Gingrich. He dropped, in the Marist polls, from 26% at te beginning of December to 13% a few days ago. Romney should have the integrity and guts—reads that balls—to say "I am Mitt Romney and I endorsed this ad" or words to that effect. Then the voters would have known the real Mittens was not the smiler singing "America the Beautiful," but a mean guy just as low-down as all those other politicians out there.

   What have the people gained by the anonymity?

   This weekend we shall discuss these matters on "Civil Discourse Now." Our guests will be Nicolas Martin, who has blogged on the topic quite a bit and disagrees with my position. Also we shall have Jeff Cox, Indianapolis attorney and Ohio State alum.