Argenbright

These consolidated appeals involve the initiative process in Montana. Montana state officials and the League of Women Voters appeal the district court’s decision, following a bench trial, that Initiative 125 (1-125), which prohibits direct corporate expenditures in ballot initiative campaigns, violates the First Amendment. 2 The Montana Mining Association and various organizations subject to 1-125 sought to delay, and then to invalidate, the election in which voters approved Initiative 137 (I-137) (restricting certain types of mining) on the ground that 1-125 unconstitutionally constrained their participation in the election process. They appeal the district court’s refusal to do either.

We conclude that the constitutionality of 1-125 is controlled by First National Bank of Boston v. Bellotti 435 U.S. 765 , 98 S.Ct. 1407 , 55 L.Ed.2d 707 (1978), and that the district court did not clearly err in its findings that corporate wealth had not distorted the ballot initiative process in Montana, and that in light of those findings, the First Amendment does not permit restricting corporate speech on public issues. Accordingly, we affirm the declaration that 1-125 is…

concurring:

I join in the opinion but write separately to underscore that First Amendment protection of political contributions is not absolute. Here, in light of the specific evidence presented and in light of the requirements of First National Bank of Boston v. Bellotti, 435 U.S. 765 , 98 S.Ct. 1407 , 55 L.Ed.2d 707 (1978), the state failed to sustain its burden of articulating a compelling interest for the restrictions. This is not to say, however, that such compelling interests do not exist, even in the context of initiative elections. The Supreme Court’s recent treatment of the evi-dentiary burden is instructive:

*1059 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 , 120 S.Ct. 897, 907 , 145 L.Ed.2d 886 (2000). Although Shrink concerned candidate elections, its reasoning on judicial scrutiny of state-asserted compelling interests applies with similar force to campaigns for ballot measures.

Legitimate policy concerns have prompted legislators to address the power of the corporate contributor. I believe that a statute may be carefully crafted and tailored to meet a compelling interest in preserving the integrity of the electoral process, such as where contributions so…

dissenting:

We occasionally hear a case falling so squarely between two conflicting Supreme Court opinions that no matter which way we veer, we are likely to run aground. This is one of those cases. With Bellotti and Austin, the Supreme Court has laid out a difficult course for us to navigate in determining whether restrictions on corporate campaign spending are constitutional. Judge Rymer works her way admirably through this challenge, but in the end I am not convinced. At the risk of running off course myself, I choose a different line because I think it is more consistent with the development of Supreme Court precedent in this area and reflects a more sensitive understanding of the ways in which corporate spending can distort the electoral process. Although certainly not disposi-tive, this approach has the added benefit of upholding the expressed discernment of the people of Montana about these matters.

In Buckley v. Valeo, 424 U.S. 1 , 96 S.Ct. 612 , 46 L.Ed.2d 659 (1976), the Court’s first major campaign spending case, the plaintiffs challenged the Federal Election Campaign Act, which placed dollar limits on political contributions to candidates and on individual…