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Montana is different. For years, the Copper Kings wielded undue influence on the state’s elections.

New Hampshire is different. Its 400-member House of Representatives makes for one lawmaker for every 3,500 residents.

Contrast that with California, where each state senator represents about 1 million residents. That’s pretty different.

Don’t forget about Nebraska, whose unicameral legislature is nonpartisan. Different.

Given such variety among all the states, professor William Marshall of the University of North Carolina School of Law wondered, why should campaign finance laws apply uniformly?

Marshall was among the speakers Friday at the University of Montana School of Law’s annual Honorable James R. Browning Symposium on Election Law. He joined Richard Pildes, a New York University Law professor, and professor Ciara Torres-Spelliscy of Stetson Law in a panel discussion on campaign finance regulation. UM law professor Anthony Johnstone moderated.

The U.S. Supreme Court’s 2010 Citizens United decision, which struck down restrictions on corporate and union spending on elections, of course loomed large. So did the Supreme Court’s decision in June to strike down Montana’s century-old ban on corporate spending on state elections.

Montana’s defense of that law, Marshall said, could be summed up in three words: “Montana is different.” Hence, his proposal that campaign finance regulations acknowledge variations among the states.

“States are laboratories of experimentation,” Marshall said. They could serve as testing grounds for election laws, with the best of those being applied nationally.

Unfortunately, the post-Citizens United influx of outside money into state campaigns is already affecting states’ unique political structures, he said.

“The damage to our democracy is very significant – that’s being caused by the injection of this kind of money into politics,” Marshall said.

Pildes said the ruling has resulted in a political power shift from inside the states to outside. He suggested that Citizens United applied too broad a free-speech brush, noting that speech is limited in several spheres. Schools, for instance, or government agencies.

Why shouldn’t politics be just another such sphere, he said, where there’s a balance struck between free speech and regulation, especially given the danger that vast spending could ultimately undermine confidence in government’s legitimacy.

“All reform proposals have to come to terms with this,” he said.


Torres-Spelliscy reached back four decades, to the Watergate scandal, to emphasize just how cataclysmic the issue can be.

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“We lost a president over campaign finance shenanigans,” she reminded the symposium’s younger participants. The Browning Symposium is organized by UM law students.

Torres-Spelliscy termed the lack of transparency one of the most troubling aspects of the Citizens United decision. Before, corporate executives could write big checks from their personal accounts to support campaigns. If employees wanted to contribute, they did so through a Political Action Committee that noted those amounts.

Now, managers can write checks from the corporate account without that level of detail. Publicly held corporations don’t have to check with their shareholders first. Or, as Torres-Spelliscy termed them, “shareholders, aka other people’s money.”

“There’s a difference between a CEO spending his own money, which I fully support, and spending other people’s money. ... When you dip into other pockets, maybe some regulation should step in.”

That said, while state regulations are all well and good, “Montana has authority over Montana corporations, not over, say, corporations in Delaware,” she said. Most of the corporations in the United States are registered in Delaware.

While courts, Congress and state legislatures wrestle with campaign finance regulations, Torres-Spelliscy is investing her hopes in the agencies that oversee campaign spending, such as the IRS and the Federal Election Commission.

The IRS, for instance, is reviewing its rules for election activity by nonprofits, she said. Members of the public can urge change by going online and commenting on proposed rules.

“Your homework from my talk today is to change the world,” she told participants. “... Follow these fights and put your 2 cents in.”

Reporter Gwen Florio can be reached at 523-5268, or @CopsAndCourts.

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