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Citizens United

Is the Montana Disclose Act in the Supreme Court’s Crosshairs?

Election Law Society · December 28, 2022 ·

By Lucas Della Ventura

From George Washington’s warnings of the danger of corruption to “drain the swamp,” the influence of large sums of money in the pockets of politicians and their campaigns have concerned Americans throughout the nation’s history. In Citizens United v. FEC, the Court breathed life into Thomas Jefferson’s forewarning that the judiciary would enable corruption: “The engine of consolidation will be the federal judiciary; the two other branches the corrupting and corrupted instruments.” With the removal of limitations on corporate “independent” expenditures, the Court tied the state governments’ hands in enacting and enforcing state laws restricting campaign contributions. The modern era of unlimited corporate campaign spending was birthed, seeing a 900% increase in campaign spending by corporations and other outside groups. From 2010 to 2018, Super PACs, also offspring of Citizens United, are estimated to have spent $2.9 billion on federal elections. According to OpenSecrets.org, the leading website that tracks money in politics, so-called “dark money” groups (organizations that spend money from undisclosed sources) have spent roughly $1 billion — mainly on television and online ads and mailers — since Citizens United was decided.

Although the Court in Citizens United struck down limitations on “independent” expenditures, all of the Justices, save Thomas, approved of strong disclosure regulations. Justice Kennedy stated, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”  In reaction to Citizens United and the flood of corporate and dark money entering into not only presidential elections, but also local elections, states like Montana, enacted comprehensive disclosure regimes. These state disclosure regimes have remained largely unscathed in the election law context, but not in others. The Supreme Court recently struck down a California regulation that required charities known for their conservative political activism and campaign financing, to disclose to the California Attorney General’s Office IRS forms containing the names and addresses of their major donors. Notwithstanding that the case focused on a state’s governmental interests in investigating charitable misconduct and the state’s lack of narrow tailoring, the decision put on alert states like Montana that have strong campaign finance disclosure regimes. 

Montana, the frontier state heralding the motto “Oro y Plata” (Spanish for gold and silver), sees itself at the frontier of legal challenges seeking to reshape how the wealth of the nation is treated by campaign finance and disclosure regimes across the country. Since 2015, the Montana Disclose Act has withstood several such tests.  In 2018, Montanans for Community Development v. Mangan, Montanans for Community Development (MCD), a 501(c)(4) that sought to send electioneering communications (issue advertisements, also known as “mailers”) refused to disclose its donors in accordance with Montana law. MCD’s two mailers at issue attacked environmentalists and encouraged fossil fuel industry promotion, mentioning candidates in upcoming Montana elections. The 9th Circuit upheld the district court’s finding that the disclosure requirements survive exacting scrutiny by serving a sufficiently important informational interest and being substantially related to the state’s interest.

The 9th Circuit elaborated on its stance regarding disclosure laws in NAGR v. Mangan, another challenge to Montana’s state disclosure requirements. The court cited to Citizens United in championing the information enhancing role disclosure laws play by stating, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The court added, “Far from restricting speech, electioneering disclosure requirements reinforce democratic decision making by ensuring that voters have access to information about the speakers competing for their attention and attempting to win their support.”

Even though the U.S. Supreme Court denied cert in both Montana cases, the Supreme Court’s lurch to the right and recent decision in AFP v. Bonta may spell danger to state efforts to achieve transparency in elections and protect the compelling informational interests provided by electioneering disclosures.

In Maine, Fight Over Foreign Financing Has Only Just Begun

Election Law Society · December 17, 2021 ·

By: Connor Skelly

A fight over an electrical transmission line in the Great North Woods has ignited a firestorm around the ability of foreign government owned corporations to spend money on electioneering in the state of Maine, with implications that could stretch all the way back to the Supreme Court’s Citizens United decision.

LD 194 was passed by the Maine Legislature in the wake of Hydro-Quebec, a company that is solely owned by Quebec’s provincial government, spending $10 million dollars on campaigning against a referendum that would have halted the constructed of a 145-mile transmission line that would bring the company’s electricity into Maine. While entities owned by foreign governments are already prohibited by both federal and Maine law from contributing money to candidates, a loophole still exists that allows them to contribute money in Maine’s popular referendums. LD 194 was meant to close this loophole. The bill prohibited companies with 10% or more ownership by foreign governments from contributing money in any Maine election, including referendums.

[Read more…] about In Maine, Fight Over Foreign Financing Has Only Just Begun

Mo’ Money, Less Democracy: Washington D.C.’s Quest for Fair Elections

Election Law Society · April 16, 2018 ·

By: Evan Tucker

“[T]he notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.” Justice Ruth Bader Ginsburg was clear when queried about Citizens United: large spending in elections by a few eviscerates the essence of democracy. Government in America is “by the People, for the People;” it is not “by the few, for the few.” At the seat of the United States government, District Councilmember David Grosso introduced the “Fair Elections Act of 2017.” Councilmember Grosso aims to “reform campaign financing and to provide for publicly funded political campaigns.” Campaign donations are necessary in electoral politics, for modern-day campaigns are incredibly expensive. For Grosso, though, democracy should not be sold to the highest bidder; that is to say, the largest donor having their preferred candidate elected and in turn having that candidate only responsive to the donor. By introducing his bill, he seeks to establish a balance by “establishing a robust public financing program.”

[Read more…] about Mo’ Money, Less Democracy: Washington D.C.’s Quest for Fair Elections

D.C. Campaign Finance Reform

Election Law Society · January 26, 2018 ·

By: Alyssa Kaiser

The world of campaign finance exploded after the Supreme Court’s 2010 decision, Citizens United v. FEC. This decision greatly impacted elections on the national stage and critics raised concerns about the ability of those with the financial means to buy elections. There are also fears about the impact of the decision on elections going forward. States struggle with similar issues in campaign finance, with concerns of “pay to play” politics controlling the District elections. The District of Columbia has important decisions to make going forward if it wants to restore confidence in its elections.

[Read more…] about D.C. Campaign Finance Reform

Maine’s Attempt at PAC Regulation 

Election Law Society · December 1, 2017 ·

By: Eric Reid

 The issue of money in politics is certainly nothing new, but recent elections have shined a national spotlight on the issue of campaign finance. U.S. federal election campaigns have become increasingly expensive, and the past three presidential election cycles have seen a steep rise in spending. The 2016 election price tag was an incredible $6.8 billion, which was an $800 million increase in spending since the 2012 election. It is important to note that this figure includes money spent by both campaigns, outside groups, and independent organizations. Federal congressional races have fared no better. The 2012 presidential election was in turn a $700 million increase from the 2008 election. The special congressional election in Georgia in June saw the candidates and Super PACs spend a whopping $55 million.
[Read more…] about Maine’s Attempt at PAC Regulation 

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