The Supreme Court Shot the Sheriff

"Corporations are people." Two years ago, that's what five justices of the United States Supreme Court gaveled into our Constitution, ruling in the now-infamous Citizens United case that spending money is a form of "freedom of speech" and that when corporations put up money to elect people, they are just exercising their First Amendment rights.

Two months ago, the Montana Supreme Court said wait a minute. It upheld a state law, enacted by Montana voters through the initiative process in 1912, that bars corporations from trying to influence elections. The justices of the Montana Supreme Court argued that the Montana law is different than the federal law that the US Supreme Court threw out, relying on what they described as an especially disturbing history of corporate corruption in Montana government.

When it comes to constitutional law, you can't get closer to the Gunfight at the O.K. Corral than this, as I recently explained.

That's a better analogy than you think.

The campaign finance laws, designed over decades to slow down the accretion of political power by special interests, were like a lazy sheriff in a western gold rush town - barely able to keep up with the legal and illegal maneuverings of outlaw corporateers, while average citizens became increasingly like bystanders in their own democracy.

Then the Supreme Court rode into town and shot the sheriff.

Now we are back to the Wild West, with corporate gunslingers targeting anyone - officials and civilians – who are in the way of their profits and prerogatives. Corporate money, often disguised and hidden behind a fortress of deception, has charged through the Republican presidential primaries, not to mention an untold number of state elections throughout the country. The full fury of this greed-driven onslaught will become apparent in the fall, as Wall Street and the .01 percenters weigh in not just to defeat President Obama (who has not cooperated enough) but any number of other candidates on ballots nationwide, not to mention initiatives put on the ballot by real, live citizens detouring corrupt legislators by taking matters into their own hands.

You can already sense defeat among government officials trying to figure out what defenses, if any, are left against the corporate hordes - the CEOs in their sky-high boardrooms quietly counting dollars and deciding which politicians have earned their financial support (or can be bought); the lobbyists with unlimited expense accounts to wine, dine and drive the quid pro quo; the vast underground of consulting firms and PR flacks that follow corporate orders.

No one could have imagined that Montana, with a population barely larger than a big city, would rise to challenge the United States Supreme Court. The Montana court ruling is an inspiring attempt to evade the deathly embrace of Citizens United and, at the same time, inescapably a courageous challenge to the ideologues now re-writing the nation's laws. It can be found here (PDF).

"Western Tradition Partnership" – the shadowy entity that was caught violating Montana's anti-corrupt practices act – immediately challenged the Montana decision, and last Friday, United States Supreme Court Justice William Kennedy (chief author of the Citizens United decision) issued an order blocking the Montana court ruling from taking effect until the court decides what to do with the appeal.

At least two of the Supreme Court justices who disagreed with their colleagues in Citizens United are hoping the Court will reconsider that ruling. In Friday's order, Justices Ginsberg and Breyer stated:

Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” .... [The appeal] will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.

Observers of the Court think that's a lost cause. Renowned constitutional scholar Erwin Chemerinsky believes that the U.S. Supreme Court will reverse the Montana Supreme Court by the same five to four majority in Citizens United. Still, Citizens United's impact on America's democracy has already been catastrophic, and support for proposals like ours to amend the Constitution has spread across the United States and transcends partisan labels. At the same time, Justices Scalia, Thomas and Alito are under fire for their close ties to conservative pro-business organizations, further undermining confidence in the impartiality of the nation's highest court. I would not underestimate the power of public opinion to affect the outcome of this showdown – if not now, then in the not too distant future of our country.

 

 

Court vs. Court

I’ve been a lawyer for thirty-two years, and I’ve never read a judicial decision like the one that the Montana Supreme Court issued last December 30.

While every court in this country – from the lowest state court to the federal tribunals – sees its job as obeying the dictates of the United States Supreme Court, the Montana Supreme Court chose to obey the U.S. Constitution instead.

The bottom line: the Montana court refused to comply with the US Supreme Court’s infamous 2010 decision in Citizens United, which struck down legal limits on how much corporations could spend on electing politicians or passing ballot measures. The Supreme Court ruled that corporations have a First Amendment right to intervene and influence our democracy with cash. Spending money is a form of free speech, said five of the nine justices. And by that one vote majority, the United States Supreme Court made corporations more powerful than government, more powerful than human beings. The second anniversary of the Citizens United ruling sparked a day of national protest, as my colleague Marty Berg reports.

Like many states, Montana had strong campaign spending laws, including disclosure of campaign contributors and one that prohibits corporations from giving money directly to candidates for public office out of the company treasury. Instead, corporations that want to get involved in elections are required to set up a special fund that can receive donations from individual corporate employees or shareholders and use that money for gifts to politicians or political causes.

As the Montana opinion explains, a Colorado-based organization known as “Western Tradition Partnership” sued to invalidate Montana’s corporate campaign controls, saying they were unconstitutional under Citizens United. Now known as “American Tradition Partnership,” the organization’s supporters and funding are murky, but it’s views are clear: it is extremely anti-environment. The Montana Supreme Court described its purpose as “to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections. WTP seeks to make unlimited expenditures in Montana elections from these anonymous funding sources. WTP’s operation is premised on the fact, or at least the assumption, that its independent expenditures have a determinative influence on the outcome of elections in Montana.”

Lots of states have dealt with Citizens United by repealing or rewriting their campaign spending laws. Not Montana.

The Montana Supreme Court decision begins by discussing how in the late 1800s, big mining interests used money to back or bribe elected officials in Montana to take control of state government. The corruption got so bad that many citizens of the state lost their faith in government. “This naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law,” writes Montana Chief Justice Mike McGrath. Among the reforms: the initiative process, and, in 1912, the limits on corporate spending.

“The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did,” the Chief Justice writes. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

While the US Supreme Court justices saw no “compelling interest” in limiting corporate contributions, the Montana Supreme Court had a different view: “Montana has a clear interest in preserving the integrity of its electoral process”;  “it also has an interest in encouraging the full participation of the Montana electorate”; and “a continuing and compelling interest in, and a constitutional right to, an independent, fair and impartial judiciary,” one that is not subject to being bought by corporations who elect friendly judges.

Concluding that “the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens,” the Montana Supreme Court refused to apply Citizens United and upheld the state’s campaign 100 year old reform law.

But that was only the majority opinion. Wait till you hear what the two dissenting justices had to say:

The first, Justice Beth Baker: “The value of disclosure in preventing corruption cannot be understated.” But, she continues, “I believe it is our unflagging obligation, in keeping with the courts’ duty to safeguard the rule of law, to honor the decisions of our nation’s highest Court.”

Justice James Nelson gets the last word, and it’s a doozy.

He writes:

“I thoroughly disagree with the Supreme Court’s decision in Citizens United…. I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the exaggerated power to influence voters and elections….. In my view, Citizens United has turned the First Amendment’s 'open marketplace' of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business.”

“It defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. 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.”

“I absolutely do not agree that corporate money in the form of ‘independent expenditures’ expressly advocating the election or defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can. Even the most cursory review of decades of partisan campaigns and elections, whether state or federal, demonstrates this. Citizens United held that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption is one that is limited to quid pro quo corruption. This is simply smoke and mirrors.”

Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections.”

“I am compelled to say something about corporate ‘personhood.’ While I recognize that this doctrine is firmly entrenched in the law… I find the entire concept 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.”

Having explained, in the most vivid terms, why Citizens United was decided wrongly, Justice Nelson concludes: “I must return to the central point of this Dissent. Regardless of my disagreement with the views of the Citizens United majority, the fact remains that the Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-à-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling….Citizens United is the law of the land, and this Court is duty-bound to follow it.”

Students of the law know that courts are always disagreeing with each other. Like the majority of the Montana Supreme Court, judges seek to “distinguish” the circumstances of one case from the facts in another in order to rule a different way. But rarely do the cases involve issues so fundamentally important to the nation; rarely are the stakes so great and rarely are the differences so stark. My guess is we're going to be seeing more of this gentle judicial civil disobedience as the present US Supreme Court ventures ever farther into the realm of re-writing the Constitution.

All the Montana justices seemed to agree that the United States Supreme Court had made a terrible decision in Citizens United. It’s most vehement critic on the Montana court, certain of that as he was, nevertheless felt bound to obey a higher principle – to obey the law of the land. If only the five justices in Washington had felt the same way.