Update on American Tradition Partnership v. Montana Attorney General

On December 30, 2011, the Montana Supreme Court reversed a trial court decision holding that Montana’s ban on corporate independent expenditures for communications expressly advocating the election or defeat of candidates is unconstitutional.

The trial court simply followed the U.S. Supreme Court decision in Citizens United v. FEC (2010), which had struck down a federal ban on such independent expenditures under the First Amendment. The Montana Supreme Court decided that Montana’s corporate independent-expenditure ban was constitutional despite Citizens United.

ATP and its co-plaintiffs asked the Montana Supreme Court to stay the effect of its decision while they went to the U.S. Supreme Court, which request was denied. We then asked U.S. Supreme Court Justice Anthony Kennedy to stay the Montana Supreme Court’s decision while they ask the U.S. Supreme Court to review the decision. That would allow Montana corporations to make independent expenditures while the U.S. Supreme Court considers the case.

In the alternative, ATP and its co-plaintiffs asked Justice Kennedy to refer the case to whole Court to summarily reverse the Montana Supreme Court. Briefing on the application to Justice Kennedy was finished on February 15, and Justice Kennedy is now deciding what to do with the request.