27 May 2016
Federal judge puts halt on MT's Stalinist vote disclosure statute
On Monday, 23 May, Dana Christensen, chief federal district court judge in Montana, enjoined Montana from enforcing MCA 13-35-225(3), a law mandating that political candidates document their characterization of an opponent’s vote on legislation.
J.C. Kantorowicz, running in the Senate District 10 Republican primary, challenged the law's constitutionality after his opponent, Rep. Steve Fitzpatrick, filed a complaint (PDF) with Montana's Commissioner of Political Practices alleging that a fundraising letter from Kantorowicz characterized but did not document Fitzpatrick's votes in the 2015 legislature.
All legislators I’ve met worry that their political opponents will distort or flat out lie about their votes in the legislature. Their concern is merited. That’s why the vote disclosure act was adopted.
The current version of MCA 13-35-225(3) was established by SB-289, the 2015 legislature’s dark money bill, introduced by Sen. Duane Ankeny (R-Colstrip), that passed the MT house 51–48 and the senate 30–50. Fitzpatrick voted against the bill on the second and third readings.
Judge Christensen was not impressed with Montana’s defense of the statute:
For a system with a stated purpose of providing information to the voter, the Court finds that it does not do it well. This is in addition to the fact that access to this information already exists through a publicly supported website. The Montana Legislature, Bills, http://leg.mt.gov/css/Default.asp (accessed May 19, 2016), see also United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (finding that a statute regulating speech was not necessary when an internet database provided an alternative means to regulation). Accordingly, the Court has grave concerns about whether MCA § 13-35-225(3) would survive strict scrutiny and finds that Plaintiffs are likely to succeed on the merits. The first Winter factor thus weighs in favor of an injunction.
i. Irreparable Harm “[L]oss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 828 (9th Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976). As explained above, the Court preliminarily determines that MCA§ 13-35-225(3) impermissibly burdens Plaintiffs’ First Amendment rights. Thus, Plaintiffs would suffer irreparable harm should this Court decline to enjoin enforcement of the statute. Plaintiffs satisfy the second Winter factor.
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In this case, not granting a preliminary injunction would either subject Plaintiffs to possible prosecution under a law that probably violates their First Amendment rights, or require them to alter their speech and include undesired information in their communications. In contrast, if the Court enjoined enforcement of MCA§ 13-35-225(3), Defendants would merely be prohibited from forcing Plaintiffs to include information in their speech that is readily available on the internet. The Court finds that the balance of equities leans in favor of the injunction. Charles Alan Wright, et al., Federal Practice and Procedure vol. 1 lA, § 2948.2, 190-191 (3d ed., West 2005) (stating that “when plaintiff is claiming the loss of a constitutional right, courts commonly rule that even a temporary loss outweighs any harm to defendant and that a preliminary injunction should issue”).
iv. Public Interest
Here, the public interest weighs in favor of a preliminary injunction. As stated above, Montana’s vote disclosure law most likely violates the First Amendment. In contrast, the focus of this statute is to provide information to the voters. However, this information is not secret and is publically available to the electorate. Thus, should this statute not be enforced, the harm to the public, if any, would be minimal. The public interest weighs in favor of granting an injunction. Because all four Winter factors weigh in favor of enjoining MCA§ 13-35-225(3), the Court will grant Plaintiffs’ motion as to this statute…
I’ve long had concerns about MCA 13-35-225(3). It’s a dangerously authoritarian law. Its advocates have no faith in the ability of the marketplace of ideas to sort out the truthfulness and value of political speech. It attempts to make the commissioner of political practices, an unelected public official, a bureaucrat, the arbiter of what is truthful in public discourse. Stalin would have loved it. I’m glad Christensen doesn’t.