Montana has engaged in a long, slow dance between corporations and politicians through much of its history. The free-spending audacity of the copper kings during the early 20th century — when mining czar W.A. Clark bought himself a seat in the U.S. Senate — are the stuff of Western lore.
In an attempt to fight back, Montana voters in 1912 passed an initiative barring direct corporate contributions to political candidates and parties — a law that, like those in many states across the country, was undone by the U.S. Supreme Court in 2010. The controversial decision gave corporations the same 1st Amendment rights as citizens and allowed businesses to freely spend their way into the nation’s political debates.
Now the Montana Supreme Court has issued a forceful rebuff of that decision.
In a new opinion drawing on Montana’s coal and copper mining history, the court upheld the state’s century-old corporate contribution limits, concluding that “the corporate power that can be exerted with unlimited political spending is still a vital interest to the people of Montana.”
The decision, handed down last week, applies only to state elections in Montana. But if it is appealed as expected, the case could provide the long-awaited vehicle critics have sought for the U.S. Supreme Court to revisit the issue decided in Citizens United vs. Federal Election Commission.
In a 5-2 opinion, the Montana court’s majority concluded that the state’s long history of well-funded natural resource extractors, small population and historically inexpensive political campaigns allow it to demonstrate compelling government interest in regulating corporate financial muscle. Even one of the justices who dissented — saying that the U.S. Supreme Court left no room for states to exempt themselves — argued forcefully against the broad corporate latitude encompassed in the Citizens United decision.
“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 creatures of government,” Justice James C. Nelson wrote in his reluctant dissent.
“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,” he wrote.
The Montana case centered on a constitutional challenge by American Tradition Partnership, which has funneled large amounts of money to battle environmental regulations seen as undermining jobs and economic development. American Tradition Partnership, known as Western Tradition Partnership when the case was filed, was joined as plaintiffs by the Montana Shooting Sports Assn. and Champion Painting Inc., a small paint and drywall firm whose owner is politically active in Montana.
“Crush Gang-Green and their Anti-Business Allies!” American Tradition Partnership says on its website. In a fundraising appeal cited by the court, the group boasts of the anonymity it offers corporate donors.
“As you know, Montana has very strict limits on contributions to candidates, but there is no limit to how much you can give to this program,” the appeal states. “No politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”
Montana’s attorney general, Steve Bullock, a Democratic candidate for governor who personally argued the case, said the potential effects of unlimited corporate spending was disproportionately large in a sparsely populated state like Montana.
“It doesn’t take a heck of a lot of money to wind up influencing a state election where our average legislator ends up winning, I think, on $17,000,” he said in an interview. “Montana has a long history of corporate influence in elections, and ultimately the citizens are saying, no, that’s not how we want to run our elections.”
John Bonifaz of Free Speech for People, a national group pushing for a constitutional amendment to overturn Citizens United, called the Montana decision an “enormously significant ruling.”
“Even if the [U.S.] Supreme Court lets [the Montana decision] stand, it would effectively open the door for every other state in the union to implement bans on corporate money in elections or to let stand their existing laws that have banned corporate money in state elections,” he said.
Donald Ferguson, director of American Tradition Partnership, said that no decision had been made on whether to appeal, but that the U.S. high court had clearly provided for business owners to exercise their constitutional rights in the election process.
“The current state law says that if you own a business and you would like to use the resources of the business to speak out about how you see the law, you essentially have to ask prior permission from the state,” Ferguson said.
“Under the current regime, the state regulatory agencies and the newspapers basically have a monopoly on information. We’re simply trying to put more free speech in motion,” he said.