A column by former Nixon attorney, John Dean, called my attention to the importance of a Monntana Supreme Court decision issued at the end of last year.

While the U.S. Supreme Court’s granting of personhood to corporations in the now infamous Citizens United v FEC case continues to reverberate, the Montana Supreme Court challenged the ruling by upholding the state’s total ban on corporate money in politics.

Since 1912, Montana has banned direct political contributions by corporations, as well as independent expenditures of corporate funds either for or against candidates. However, the state does allow political spending by corporate political action committees as long as they are funded by voluntary contributions by corporate employees, officers, or shareholders.

In an 29-page decision adopted by a 5-2 vote, the court held that the specific facts of corporate corruption in Montana history provided a compelling justification for the prohibition on corporate money. Two dissenting opinions, though, were spelled out over an additional 50 pages of detailed argument.

Dean wrote:

The MSC majority reasons as follows: “The Dissents assert that Citizens United holds unequivocally that no sufficient government interest justifies limits on political speech. We disagree. The [U.S.] Supreme Court held that laws that burden political speech are subject to strict scrutiny, which requires the government to prove that the law furthers a compelling state interest and is narrowly tailored to that interest.”

Accordingly, the MSC majority proceeded to assemble facts showing that the Montana legislature had a compelling state interest when—one hundred years ago—its members enacted the Montana law that prohibited corporations from making campaign contributions. What was that interest? It was to reverse the situation as it then stood in Montana: Corporations had, at that time, utterly corrupted the state’s government.

The state’s case in defense of the prohibition on corporate spending had several parts. First, the state argued that setting up a political action committee is simple and cannot be compared to the complexity of establishing and maintaining a PAC under the complexities of federal election law.

Second, based on depositions of the plaintiffs, the state established that the existing law had not prevented companies and industry groups from being active participants in politics.

Third, reviewing Montana state history, the state recounted the massive corporate corruption of the late 19th through the mid-20th centuries, including findings of Congressional investigations into several matters. The state’s political history is one of “naked corporation manipulation” of the government and legislature through bribery and other forms of corruption.

Fourth, the state established that Montana elections cost less than in other parts of the country, allowing smaller amounts of money to make significant impacts on election outcomes.

In any case, I would recommend reading through the decision, which is likely heading for a review by the U.S. Supreme Court.

But the new legal initiative raises questions about possible sunshine law violations, one careful reader of this blog suggested.

The issue is simple. The reapportionment commission has not met since the Supreme Court’s decision was handed down on January 6. So how/when did the commissioners authorize the filing of this appeal on their behalf?

Bart Dame, who was an active observer and participant in the commission’s public process, sees it this way:

I had expected the Reapportionment Commission to have called a meeting immediately after the Jan 4th Supreme Court ruling which declared their plan to be unconstitutional. In fact, I think it would have been prudent, given the time constraints, for them to have publicly announced such a meeting prior to knowing which way the court was going to rule. Had the court ruled in their favor, it would have allowed them to finalize their report. Were the court to rule against them, it would allow them to huddle and decide what strep to take next.

It appears they HAVE been holding discussions and making decisions, but without benefit of a formal meeting. How else to understand their “decision” to hire outside attorneys and to ask for reconsideration RATHER than using the scarce time available to revise their rejected plan?

How is this not evidence of a blatant violation of the Sunshine Law?

The commission is scheduled to meet this Friday afternoon, January 20. Will they address the question of how these decisions could have been made without benefit of a meeting? And without a meeting, could this action have been taken on behalf of the commission as a whole?

The first bill, referred to by OIP as the Appeals bill, is the agency’s response to the decision of the Intermediate Court of Appeals in the case of County of Kauai v. OIP, 120 Haw. 34, 200 P.3d 403 (2009).

In my view, the proposed bill addresses a problem which is not really a problem. I’ve written about this before on several occasions (here’s a link to what may be the most recent).

The underlying issue here was that the state’s open meeting law, known as the sunshine law, allows “any person” to request a court review. Either an agency or an aggrieved citizen can go to court. But the UIPA, our public records law, doesn’t extend the court option to government agencies. The Kauai case, although it involved a request for documents (minutes of a county council meeting held in confidential executive session), it revolved around a legal question of whether the executive session was proper, a sunshine law issue.

OIP takes the position that it undermined its authority under both laws, and proposes its Appeals bill as a remedy.

OIP seems to be the only source of this “woe is me” attitude. The court decision was driven by a very particular set of facts, a situation unlike most other disputes involving public records, and not one very likely to be repeated. As far as I know, there haven’t been any other agencies trying to creatively apply the Kauai decision to the broader range of typical document requests, as feared by OIP. There’s no avalanche of new agency appeals.

And OIP’s bill would not simply limit an agency’s appeal rights under the sunshine law, but clearly extend those rights to the OIPA, which seems to contradict the OIP’s expressed concerns.

In my view, this bill is unnecessary and potentially counterproductive. It addresses a problem which hasn’t proved to be a problem, and it’s driven by legal minutiae rather than a clear policy perspective.

I’ll take a look at OIP’s other proposal tomorrow.