Montana Strikes Back

The Supreme Court could learn a lesson on campaign finance from the Big Sky state.

Following decades of struggle under the political weight of mining companies, banks and railroads, Montanans passed a law in 1912 stating that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”

Ninety years later, in 2002, that old statute was provided an assist from D.C. through the McCain- Feingold reform act, which prohibited spending by independent organizations that aren’t contributed directly to candidate campaigns — the so-called “soft money” ban.

Then, out of the blue, in January 2010, the Supreme Court asserted that precedent didn’t matter — not among corporate friendlies, anyway — and declared most of McCain-Feingold unconstitutional. Justice Anthony Kennedy, writing for the court, rested his argument on three major points:

1. The First Amendment guarantees of freedom of speech; 2. The 14th Amendment as applied to the states through the Incorporation Doctrine, guarantees corporations the same rights as individuals; 3. To quote Kennedy, there is “little evidence of abuse that cannot be corrected through the procedures of corporate democracy.”

Once this decision, Citizens United, was on the books, two Montana corporations — one chartered in-state, another headquartered in Colorado — challenged the state’s existing law, citing Citizens United as precedent. The Montana district court agreed and issued a judgment for plaintiffs. The state appealed to the Montana State Supreme Court.

And here’s where things got really interesting. By a vote of 5-2, the Montana Supreme Court upheld the state’s 1912 law. The majority opinion was written by the Montana Chief Justice, Mike McGrath, who, notably, comes from a different world (and I’d say, a more real world) than Anthony Kennedy. He went to the University of Montana and then earned a juris doctor from Gonzaga University, not Stanford or Harvard.

But then, McGrath is from Butte, and his writing style displays a visceral quality, informed by growing up in that corporate-dominated town.

McGrath views Kennedy’s case law survey, absent context, to make no sense. (Kennedy’s opinion seems to me both overdone and bloodless — kind of like Mitt Romney defending his time at Bain Capital.)

Citing several Montana histories, McGrath exposes the absurdity of the “corporations as people doctrine,” which was first “read” into the Constitution in 1886 through a headnote that was written by the court reporter; the question was never actually argued before the Court.

As an aside: Justice Kennedy might have given some thought, if not to Montana history, at least to the history of corporate political corruption in his home state of California. The Southern Pacific Railroad bought legislators, illegally drove competitors out of business and controlled up to 11 million acres. Kennedy ignores even this context.

McGrath’s major point: Montana has a compelling state interest to protect the public from campaign-finance abuses.

Fellow Montana Justice James Nelson, who dissented from the majority only because he didn’t think that McGrath had made the necessary “compelling state interest” argument, nonetheless agreed with most of McGrath’s criticism, including his 14th Amendment analysis. Nelson writes:

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.

We know that on Wall Street and Capitol Hill, Nelson’s opinion will be viewed as subversive — a threat to the very edifice of our corporate-dominated political economy. But in the Big Sky state? It’s home-grown common sense.

Westerners, who have experienced so much life with absentee corporations, have more insight into this issue than the Anthony Kennedys ever will. Most regard his assertion that corporate campaign excesses can be controlled “through the procedures of corporate democracy” to be sheer fantasy Corporate democracy? Gosh, I must have missed that stockholder’s vote on the $40 million golden parachute the Hewlett-Packard board of directors tossed out to Carly Fiorina as she walked out the door after having run the company onto the rocks. Is he kidding?

Justice Nelson says it best:

It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spending capability of corporations to place corporate views before the electorate.

It reminds me of the movie Butch Cassidy and the Sundance Kid. Butch’s gang is doing just fine robbing local banks. Then they rob a Union Pacific train — the railroad of Mr. E. H. Harriman of the New York Harrimans. Next thing our anti-heroes discover is that they’re being tracked by a posse, the Pinkertons, led by a man in a white hat. Over and over, Butch mutters, “Who are those guys?” For most Westerners — in fact, for most everyone living in a fly-over state — “those guys” aren’t people at all. It is nameless, faceless, absentee, corporate America.

McGrath ends his opinion by posing one last common-sense question:

When in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did? If the statute has worked to a degree of political and social autonomy, is the State required to throw away its protections because the shadowy backers of WTP [Western Tradition Partnership] seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines?

I’d pay to hear our arrogant and distant Supreme Court majority answer this question.

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About The Author

Robert Herold

Robert Herold is a retired professor of public administration and political science at both Eastern Washington University and Gonzaga University. Robert Herold's collection of Inlander columns dating back to 1995, Robert's Rules, is available at Auntie's.