Huzzah for the Montana Supreme Court!

by Russell Arben Fox on January 3, 2012 · 12 comments <span>Print this article</span> Print this article

in Short

montana

This is the kind of states’ rights I like:

Montana’s Supreme Court has issued a stunning rebuke to the U.S. Supreme Court’s Citizens United decision in 2010 that infamously decreed corporations had constitutional rights to directly spend money on ‘independent expenditures’ in campaigns.

The Montana Court vigorously upheld the state’s right to regulate how corporations can raise and spend money after a secretive Colorado corporation, Western Tradition Partnership, and a Montana sportsman’s group and local businessman sued to overturn a 1912 state law banning direct corporate spending on electoral campaigns.

“Organizations like WTP that act as a conduit for anonymously spending by others represent a threat to the political marketplace,” wrote Mike McGrath, Chief Justice of the Montana Supreme Court, for the majority. “Clearly the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens”….

The Montana Court then launched into detailed explanations of sufficiently compelling state interests to merit sustaining the century-old law. The majority opinion read like a history lesson that recounting how the state, especially in the decades following its founding in 1889, struggled to restrict the power and influence of mining corporations. In 1906, the citizenry amended the state Constitution to allow for ballot initiatives. Six years later it passed the ban on corporate spending, specifically to curb mining companies based in Butte. The Court noted that the state—then and now—was beset with corporate players whose money, power and influence easily overshadow individuals.

“What was true a century ago is as true today: distant corporate interests mean that corporate dominated campaigns will only work ‘in the essential interest of outsiders with local interests a very secondary consideration,’” the opinion said, quoting a historian’s testimony from a lower state court that reviewed the case. “While specific corporate interests come and go in Montana, they are always present.”

The Court said Montana had a political tradition that has emerged in intervening decades and they wanted Montana to remain a state where candidates run low-budget, personal campaigns and do not rely on anonymous, well-financed messaging from outsiders.

I wish I could believe that this sort of populist and democratic resistance to distant (and distancing!) corporate power was actually a major motivation throughout America’s more rural and western regions–or in other words, I wish it was the case that Wendell Berry and Daniel Kemmis and others like them truly typified the often libertarian, decentralist sensibilities of the America West. Too often, though, that doesn’t seem to be the case; too often, I find that many of my Kansas friends and neighbors tend to believe–wrongly, I think–that cutting school and arts and social service funding, eliminating jobs, rejecting federal supports, and hanging out with supply-siders like Arthur Laffer, is how one gets a “Jeffersonian” revolution. But hell: we have to take what we can get. And in Montana, we’ve been given a gift of a clear and ringing denouncement of a principle that, while perhaps originally grounded in a legitimate consideration of the First Amendment (an amendment which I think is overrated anyway), has grown, with Citizens United, far beyond anything that a free community of citizens ought to accept. And you know–even the dissenting vote on the Montana Supreme Court saw the truth of that:

“While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the [U.S.] Supreme Court’s decision,” wrote Justice James C. Nelson, in his dissent. “And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping….

“While I recognize that this doctrine is firmly entrenched in law, I find the concept entirely offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”

Well said, Montana. I need to get back to Big Sky country more often.

{ 12 comments… read them below or add one }

avatar John Haas January 4, 2012 at 12:10 am

Kind of cool, what?

avatar William O. B'Livion January 4, 2012 at 6:53 am

One issue that folks don’t seem to get about the CU suit was that there are lots of different kinds of corporations, and the law applied to all of them equally.

The same “incorporating” that lets the NRA function as a mouth piece (more or less) for it’s 5 or 6 million members is the same sort of incorporating that WTP/ATP has done, that unions do, and that groups like Green Peace do.

I understand the frustration at underhanded behavior–like for example the 50 or 500 “grass roots” organizations that Soros and his “Open Society Foundation” that don’t have to buy ads as they get the ear of the media for being on the right side of an issue and looking like large numbers of concerned people when it’s really just a few thousand professional leftists all working together.

But really the only way folks like me can compete is to find a corporation like the NRA and give them my money. I don’t have time or money to fly half way around the world (I work OCONUS right now) to personally meet with my alleged representatives (even if I had any. I haven’t lived in the US long enough to vote in a regular election since 2008, and I won’t be moving back to that state any time soon).

If the government was interested in cleaning up the contests they would, but the last thing they want is clear, honest debate.

avatar Mark Conder January 4, 2012 at 11:41 pm

@William O.
A horrible law applied equally is equally horrible. Your example make no sense in regard to corporate campaign expenditures. Is is merely your unsubstantiated assertion that “leftists” are more able to readily exploit a imaginary monolithic “media” than their political opposites. I would ask to see your evidence of this but of course it has no relevance to the topic.

avatar Corey January 5, 2012 at 2:24 pm

You may look forward, given the patent unconstitutionality of the Montana Supreme Court’s decision, to this being overturned by the Supreme Court of the US. The Citizens United case was decided correctly and constitutionally, while the Western Tradition Partnership case was decided pretty clearly in ignorance of the law.

Furthermore, however much we may dislike large, for-profit corporations, we lose sight of the fact of what corporations actually are and do when we also lose sight of the fact that “corporate personhood” does not mean that corporations are “real” people. Rather, corporations are groups of “real” people who join together to better exercise their rights. Corporations can be anything from large oil conglomerates to the ACLU, from The New York Times to the AFL-CIO. If the groups formed by rights bearing individuals are not treated, in law, as bearing personal rights, then government officials can do just about anything the like to corporations including censoring the speech of media corporations. To claim that corporations are not legal persons is, then, to claim that when individuals associate in groups they lose the rights they had as individuals.

The only other objection I could see to the Supreme Court’s ruling would be to say that political ads and contributions are not speech. But that doesn’t seem to be anyone’s preferred way of attacking Citizens United.

avatar Russell Arben Fox January 5, 2012 at 2:35 pm

Corey, I agree that this decision is very likely to be speedily overturned by the Supreme Court. I nonetheless see two very good possibilities from this decision. First, it will keep the contention over Citizens United alive, thus keeping our eye on the real ball here: namely, the unequal power which exists in our public sphere between those who have access to corporate spending and those who do not. Second, it force the Supreme Court to revisit the issue, and thus hopefully provide some constitutional wiggle room for those localities, like Montana, who justly believe that their local political culture is particularly subject to corporate abuses.

As for your larger point, you come to the heart of the debate in your second-to-last sentence: “To claim that corporations are not legal persons is, then, to claim that when individuals associate in groups they lose the rights they had as individuals.” Exactly. Both Jefferson and Marx, in very different ways and from very different premises, came ultimately to very similar conclusions: human beings, when they band their wealth together for joint purposes, have a social power which they lacked previously; they have the ability to exploit and manipulate in a way that they couldn’t have as mere citizens in the community. Does this mean that every possible corporation, from Walmart to the Boy Scouts of America, are equally exploitive and alientating and therefore deserve no speech rights? Not at all. But it does mean the rules of constitutional scrutiny should not be the same for both individual citizens and corporations–and under Citizens United, they basically are.

avatar Harry Beadle January 5, 2012 at 5:55 pm

Of course, the Montana justices could do something really radical … like re-impose state sovereignty and tell the U.S. Scotus to bug off! Now that would give me some real hope for change!

avatar Jeff Taylor January 6, 2012 at 12:11 am

“If the government will quit picking out favorites and follow the doctrine of equal rights to all and special privileges to no man—I have no fear that any man by his own brain or his own muscle will be able to secure a fortune so great as to be a menace to the welfare of his fellow men.

. . . Every trust rests upon a corporation, and every corporation is a creature of law. The corporation is a man-made man. When God made man as the climax of creation, he looked upon his work and said that it was good, and yet when God finished his work, the tallest man was not much taller than the shortest, and the strongest man was not much stronger than the weakest. That was God’s plan. We looked upon his work and said that it was not quite as good as it might be, and so we made a fictitious person called a corporation that is in some instances a hundred times—a thousand times—a million times stronger than the God-made man.

. . . When God made man he breathed into him a soul and warned him that in the next world he would be held accountable for the deeds done in the flesh, but when we made our man-made man we did not give him a soul, and if he can avoid punishment in this world he need not worry about the hereafter.

. . . We are not dealing with the natural man; we are not dealing with natural rights. We are dealing with the man-made man and artificial privileges. What government gives the government can take away. What the government creates it can control, and I insist that both the state government and the federal government must protect the God-made man from the man-made man.”

— William Jennings Bryan, September 1899, Chicago
(The Second Battle, W.B. Conkey Co., 1900, pp. 225-228.)

avatar John Haas January 7, 2012 at 1:11 pm

I don’t see why this should be considered “speech.” It’s much more.

Suppose I were to form a corporation–let’s call it “Take Back FPR”–and began taking out ads all over the place promoting Russell Arben Fox’s particular columns. Suppose these ads worked, and he became a super-star blogger. Suppose, in consequence, he began writing what I wanted him to write, and as a consequence of that, I became more progressively more wealthy, and so contributed more to him, and others, and on and on.

Would anyone really say, Well, that’s just “speech”? I mean, I know money talks and all, but it does other things, too.

Why does it no make more sense to allow corporations to take out issue ads, without endorsing candidates, and then, if they can convince the voters, fine, they’ve reaped the rewards of their speech?

avatar Siarlys Jenkins January 7, 2012 at 10:39 pm

Fox, Taylor, and Bryan have said it all so well, I will just try to add this: Protecting the integrity of the electoral process, so that all candidates can compete on a roughly level playing field, IS protection of free speech. The behavior of well-funded PAC’s trying to drown out all opposing viewpoints by sheer volume is morally and ethically no different that the street corner thug, caught dead to rights, who begins shouting and ranting and denouncing their denouncer in a non-stop stream of verbiage that leaves one with the thought that their lungs are infinite in capacity.

The Montana Supreme Court may well be a harbinger of the future, in the same manner that the Wisconsin Supreme Court was when it ruled the federal Fugitive Slave Act null and void in the state. Yes, it was over-ruled by the U.S. Supreme Court, but that in turn was reversed by a higher tribunal. Civil war is not the ONLY way to do that. Brown v. Board of Education was accomplished by the Supreme Court itself, and required only two decades of modest civil strife and intermittent bursts of terrorism.

avatar Corey January 8, 2012 at 9:59 pm

I do wonder what you think about the Constitutional amendment proposed by Sen. Bernie Sanders in response to the Citizens United decision (http://sanders.senate.gov/imo/media/doc/S.J.Res..pdf). The upshot of the amendment is that for-profit corporations would no longer be considered to have the same rights as natural persons. Doug Mataconis points out some of the problems with such an amendment, and gives a more expansive version of the argument I made above for “corporate personhood” here: http://www.outsidethebeltway.com/citizens-united-and-the-foolish-attack-on-corporate-personhood/. An essay cited by Mataconis from The Economist may be of special interest to FPR readers, because it suggests that the legal fiction of corporate personhood allowd the west to pull ahead of the muslim world, and “turbocharged the industrial revolution and laid the foundations for mass prosperity.” Check it out here: http://www.economist.com/node/18437755

avatar Siarlys Jenkins January 9, 2012 at 6:48 pm

Ending corporate personhood will not, ipso facto, end the limited liability corporation. It will simply recognize that the corporation is a creation of the state, and accumulation of corporate power is quite as much to be distrusted as accumulation of state power. To the extent that authorizing limited liability stimulates commerce in a manner that promotes the general welfare and insures domestic tranquillity, the sovereign people, by and through their elected representatives, shall authorize and suffer such an arrangement to exist.

But when it comes to the voice of the people being expressed through the institutions of republican government, the corporation shall sit down, shut up, and not be counted, just like the asphalt pavement on the interstate highway system, the marble blocks of the newest skyscraper, and the ocean liner docking in New York or Miami, none of which have voice or vote.

Those who fail to recognize the distinction are throwing up shabby cover for a usurpation of power, blackmailing We The People with a price tag that is not, in fact, tied to the proposed corrective amendment. We should keep in mind that the fiction of corporate personhood was mere dicta, a verbal aside to oral argument in the Santa Clara v. Southern Pacific Railway case, which should never have been cited as precedent at all.

There ARE pitfalls to a constitutional amendment. Many pure advocacy organizations incorporate, as non-profits. I wouldn’t want an amendment to overturn NAACP v. Alabama, for instance, or forbid either Planned Parenthood or Pro-Life America from participating in public discourse. Freedom of association is an important right of citizens, of natural persons. But to limit the amount any natural person can contribute, no matter how many channels they contribute through, or to limit the total amount any given PAC can spend on any given election, is no bad thing at all.

avatar D.W. Sabin January 10, 2012 at 9:36 pm

Bennie Devoto wrote a fine piece on the “West Against Itself” that appears to have been read by the mainstream of the coasts who have adopted the ethos of that which Bennie decried and used it as a guidepost to insure that the nation is against itself.

The best indication of this is the meta-narrative that one is either “pro” or “anti”-government. Wise government is never mentioned.

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