In its well-intentioned fight against political corruption, Montana has won a battle but looks likely to lose the war.
The victory was the recent state Supreme Court decision upholding Montana’s century-old law barring corporations from spending money to influence our elections. The war will almost surely be lost when the case is appealed to the U.S. Supreme Court.
Montana Chief Justice Mike McGrath wrote the majority opinion, much of which was devoted to sketching this state’s history as the plaything of large corporations, particularly the Anaconda Company. He quotes extensively from the works of the late Montana historian K. Ross Toole, who understood that for many years Montana was treated more like a foreign colony than one of the 50 states.
McGrath even quoted Mark Twain, who said that Butte Copper King W.A. Clark “bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.”
That was vintage Twain, but it was not quite true. The stink of corruption was so offensive that in 1906 the people of Montana voted to amend our constitution to allow citizen initiatives. Then they used the initiative process in 1912 to pass the Corrupt Practices Act.
A century later, a challenge
That act was the basis of the law that was challenged by American Tradition Partnership, the lead plaintiff in the suit before the state high court. Known as Western Tradition Partnership when it sued the state, the group is devoted mainly to fighting environmentalists.
The state Supremes overruled a district judge who ruled in favor of the partnership, declaring the state law unconstitutional in light of the U.S. Supreme Court’s 2010 ruling in the case known as Citizens United. That was the ruling that declared corporations are persons with First Amendment rights to free speech.
It is tempting to root for the home team, to side with Mark Twain and K. Ross Toole against the corporate “persons” that are licking their chops in anticipation of wide-open spending on elections here and elsewhere in the country.
But history and emotion and wit are not enough to overturn a U.S. Supreme Court decision. That was the message of Justice James Nelson, who wrote a lengthy, sobering dissent from the state Supreme Court majority.
“I profoundly disagree” with the Supreme Court’s ruling in Citizens United, Nelson said, and he “never had to write a more frustrating dissent.” But like it or not, a careful reading of the high court’s decision in Citizens United “leads inescapably to the conclusion” that every point made by the state of Montana “was argued, considered, and then flatly rejected by the Supreme Court.”
Desire vs. duty
Nelson makes a passing reference to the nullification laws that the Civil War-nostalgic 2011 Montana Legislature wasted so much time debating. There is clearly a widespread desire to thumb our noses at the federal government, Nelson said, but the fact remains that all elected officials in Montana are sworn to defend the U.S. Constitution.
When “the highest court in the country has spoken clearly on a matter of federal constitutional law,” he continued, the Montana Supreme Court “is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision.”
Justice Beth Baker, the other dissenter, said she would have upheld only those parts of the law requiring full reporting of all independent corporate expenditures on election campaigns.
The court may be asked to rule on that issue one day soon. American Tradition Partnership is pursuing a separate lawsuit against the state that challenges public disclosure of campaign spending. The group also asserts that it is involved only in “educational,” not political, activities.
If you believe that, you probably also believe that the millions of dollars spent by political action committees during the Iowa Republican caucuses were for purely educational purposes.
I’m afraid we’ll just have to be patient. As repulsive as American elections have been in recent years, they’re going to get much worse and much uglier. The bizarre notion that a corporation is equivalent to a person might seem as ridiculous to a future high court, or even this one in time, as it does to most regular citizens.
Which is to say that maybe someday the U.S. Supreme Court will possess the wisdom so painfully acquired by Montanans before they passed the Corrupt Practices Act 100 years ago.