Mike Sacks, Huffington Post, 01-04-2012
WASHINGTON — The Montana Supreme Court has put itself on a collision course with the U.S. Supreme Court by upholding a century-old state law that bans corporate spending in state and local political campaigns.
The law, which was passed by Montana voters in 1912 to combat Gilded Age corporate control over much of Montana’s government, states that a “corporation may not make … an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party.” In 2010, the U.S. Supreme Court, in its landmark Citizens United v. Federal Election Commission decision, struck down a similar federal statute, holding that independent electoral spending by corporations “do not give rise to corruption or the appearance of corruption” that such laws were enacted to combat.
That reasoning — described by the Citizens United dissenters as a “crabbed view of corruption” — compelled 23 of the 24 states with independent spending bans to stop enforcing their restrictions, according to Edwin Bender, executive director of the Helena, Mont.-based National Institute on Money in State Politics. Montana, however, stood by its 1912 law, which led several corporations to challenge it as unconstitutional.
By a 5-2 vote this past Friday, the Montana Supreme Court declined to recognize the common understanding that Citizens United bars all laws limiting independent electoral spending.
Instead, Chief Justice Mike McGrath, writing on behalf of the majority, called on the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption.
McGrath’s opinion in Western Tradition Partnership v. Attorney General harkens back to the turn of the 20th century, when Montana’s “Copper Kings” — the natural resource-rich state’s version of the robber barons — competed “for political and economic domination” so effectively that by the time the Montana voters banned corporate spending in a voter initiative, “the State of Montana and its government were operating under a mere shell of legal authority.” One such Copper King, wrote Mark Twain in a quotation cited by McGrath, was “said to have bought legislatures and judges as other men buy food and raiment.”
Paul S. Ryan, associate legal counsel at the Campaign Legal Center, characterized the Montana Supreme Court’s reliance on factual findings culled from a century of state history, plus the trial testimony from contemporary politicians of both parties, as “an antidote to the crabbed view of corruption” adopted inCitizens United. Nevertheless, most observers, including Ryan, do not anticipate the U.S. Supreme Court accepting that antidote. The ruling in Citizens United that independent spending does not give rise to corruption introduced a categorical rule that no factual reality can overcome as long as the decision’s five-justice majority remains on the Court.
To make this point, dissenting state Justice Beth Baker wrote that Montana “made no more compelling a case than that painstakingly presented in the 90-page dissenting opinion of Justice [John Paul] Stevens and emphatically rejected by the majority in Citizens United.”
And state Justice James Nelson, also dissenting, put the point more bluntly. Even while lambastingCitizens United‘s reasoning as “utter nonsense” and “smoke and mirrors,” among other insults, he found himself duty-bound to defer to the decision of the highest court in the land. “The Supreme Court inCitizens United rejected several asserted governmental interests,” wrote Nelson, “and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a ‘Made in Montana’ sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute.”
Nelson wrote that it “would not surprise me in the least” if the U.S. Supreme Court reversed his court’s decision without even asking for briefs or oral argument from the opposing parties.
To reverse the Montana Supreme Court, however, the justices would have to extract themselves from a quandary of their own making, noted professor Rick Hasen of the University of California-Irvine Law School on his popular Election Law Blog. “If the Court were being honest in Citizens United,” Hasen wrote, “it would have said something like: We don’t care whether or not independent spending can or cannot corrupt; the First Amendment trumps this risk of corruption.”
But by “dress[ing] up its value judgment … as a factual statement,” continued Hasen, the U.S. Supreme Court must now explain why the Montana Supreme Court was not correct to consider the factual record when it came to justifying corporate spending limits in campaign finance laws.
How the Citizens United majority will deny the force of Montana’s factual record or, for that matter, Mark Twain’s observations — and whether the Citizens United dissenters will express their schadenfreude at their colleagues’ efforts — remains hypothetical for now. Donald Ferguson, executive director of lead plaintiff American Tradition Partnership (formerly known as Western Tradition Partnership), wrote in an email to HuffPost that his organization has “not yet made a decision on future actions regarding the suit.”
