Double Barrel Blast From Big Sky Country: Montana Rejects Citizens United

In the context of Montana's low cost elections, unlimited corporate spending could have a particularly pronounced impact -- discouraging every day citizens from participating in the political process.
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On December 30, 2011, by a vote of 5 to 2 the Montana Supreme Court decided that Montana's ban on corporate political expenditures dating back to 1912 could stand. In a hard hitting decision, the U.S. Supreme Court's take on the role of corporate money in politics in 2010's Citizens United was challenged by both the majority and a dissent. The Montana Court slammed Citizens United from both barrels.

Barrel One
Barrel number one is the majority opinion, which relies on the particular history of Montana to uphold the constitutionality of the Corrupt Practices Act, a voter initiative, which was adopted on the heels of rampant corporate corruption at the behest of out of state mining interests. As the majority wrote: "the Montana law at issue in this case cannot be understood outside the context of the time and place it was enacted, during the early twentieth century."

Montana's "Copper Kings" as they were known bought judges, influenced the legislature and nearly monopolized the state's mass media of the day -- its newspapers. The corruption had federal aspects as well as. One U.S. senator from Montana, W. A. Clark, was expelled because the Senate concluded he had won his seat through bribery. The people of Montana chose to protect their democracy from this type of mischief by outlawing corporate spending in Montana's elections.

The Montana Supreme Court held that Citizens United did not rule that expenditure bans were per se invalid. Rather, the Court noted that an expenditure ban is subject to strict scrutiny, which requires the state to show a compelling reason justifying the ban. The majority found the people's interest in electoral integrity and voter engagement compelling and that the law was narrowly tailored to serve these interests.

Montana has some of the lowest cost elections in the nation. This is driven in part because it is one of the least populous states (therefore candidates have fewer constituents to reach), and in part because it has $130 contribution limits. This democratizes who can afford to donate in Montana's campaigns. This is apparent when compared to a state like New York where candidates for governor can get over $55,000 from a single contributor, more than the average New Yorker makes in a year. As the Court noted, in the context of Montana's low cost elections, unlimited corporate spending could have a particularly pronounced impact -- discouraging every day citizens from participating in the political process.

Another reason the Court upheld the ban was to protect Montana's elected judiciary. As the nonprofit group Justice at Stake has noted for years, the cost of judicial election around the country have been spiraling upwards. The Court concluded Montana "has a compelling interest in precluding corporate expenditures on judicial elections based upon its interest in insuring judicial impartiality and integrity, its interest in preserving public confidence in the judiciary and its interest in protecting the due process rights of litigants." The Court was particularly worried that, "an entity like Massey Coal, willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices."

Barrel Two
The second barrel blast at Citizens United came not from the majority but from Justice James C. Nelson's dissent. To be clear, both dissenting Justices felt that Montana was bound to amend its law in light of Citizens United and Justice Nelson used some particularly colorful language to make this point. But just as noteworthy, Justice Nelson's dissent states unequivocally his deep disagreement with the reasoning of the Supreme Court in the original Citizens United decision.

One of Justice Nelson's most damning critiques of Citizens United is the risk of citizens becoming sidelined while corporate spenders take central stage in elections. As he wrote:
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. In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections.
In other words, he gave voice to a common sense observation that in electoral spending, size matters.

Justice Nelson also challenged one of Citizens United's central tenets that independent expenditures cannot corrupt. Justice Nelson framed the issue this way:
I absolutely do not agree that ... "independent expenditures" ... cannot give rise to corruption ... Of course it can. ... Citizens United held that the only sufficiently important governmental interest in preventing corruption ... is one that is limited to quid pro quo corruption. This is simply smoke and mirrors. In the real world of politics, the "quid pro quo" of both direct contributions to candidates and independent expenditures on their behalf is loyalty.
As a finally kicker, Justice Nelson concluded, "[a]nd, in practical effect, experience teaches that money corrupts, and enough of it corrupts absolutely."

One thing is clear: six of seven Montana Justices disagreed with the Supreme Court's conclusion that corporations should have the same rights as individuals to spend money in elections. This double barrel blast from Big Sky Country has reframed the debate about Citizens United. Thanks to Montana, Americans can reconsider the magnitude of out of state political spending, how to guard due process against a backdrop spending by litigants in judicial elections, and whether corporate spending corrupts the democratic process.

Ciara Torres-Spelliscy is an Assistant Professor of Law at Stetson University College of Law and Co-Author along with Economist Dr. Kathy Fogel of "Shareholder-Authorized Corporate Political Spending in the U.K."

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