In its Western Tradition Partnership decision, the Montana Supreme Court ruled that the constitutionality of state campaign finance restrictions should be reviewed with particular reference to the political history and traditions of the state enacting the regulation. In so holding, the Montana Court recognized that the states have different political cultures and that these different political cultures can lead to very different regulatory concerns. On this basis, the Montana Court concluded that a type of campaign finance restriction that may be unconstitutional when applied to national elections or to elections in one state might be constitutionally permissible when applied to elections in another. The United States Supreme Court did not take this argument seriously. It should have. The political cultures of the states are different, and applying a one-size-fits-all prescription to the constitutionality of campaign finance rules undercuts both this reality and sound principles and protections of federalism.
William P. Marshall,
The Constitutionality of Campaign Finance Regulation: Should Differences in a State's Political History and Culture Matter?,
74 Mont. L. Rev.
Available at: http://scholarship.law.umt.edu/mlr/vol74/iss1/5