As 2011 came to an end, the Montana Supreme Court issued a 5-2 ruling that flies in the face of the U.S. Supreme Court's controversial Citizens United decision holding that, under the First Amendment, government cannot limit the ability of corporations to make political donations. The majority of Montana's court bravely sided with its citizens, in a ruling that likely will be appealed to the U.S. Supreme Court.
In overturning a district court ruling and upholding Montana's ban on corporate expenditures in political campaigns, the Montana Supreme Court relied on the history of corporate corruption in Montana and the way that unlimited corporate spending could take us back to the bad old days of corporate domination of the media, the legislature and the courts.
Montana's Anti-Corruption Act was passed by initiative a century ago, shortly after the state constitution was amended to allow citizen initiatives. Montana Chief Justice Mike McGrath wrote that 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 20th century... Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations. These disputes had profound long-term impacts on the entire state, including issues regarding the judiciary, the location of the state capitol, the procedure for election of U.S. senators and the ownership and control of virtually all media outlets in the State."
Faced with a loss of control of their destinies, Montanans made it illegal for corporations to contribute or make expenditures "in connection with a candidate or political committee that supports or opposes a candidate or political party" as well as prohibiting "a person, candidate or political committee" from accepting or receiving such contributions. At the same time, the law allows for "a separate segregated fund" to make such donations, provided that "the fund consists only of voluntary contributions solicited from an individual who is a shareholder, employee or member of the corporation."
Those provisions were challenged by three entities: the Montana Shooting Sports Association, headed by gun-rights activist Gary Marbut: a sole-owner corporation named Champion Painting, Inc.: and American Tradition Partnership (formerly Western Tradition Partnership). The last entity, the court found, "claims to be a foreign corporation but it is not a business corporation. Its purpose, according to un-rebutted evidence submitted to the district court by the state, is to solicit and anonymously spend the funds of other corporations, individuals and entities to influence the outcome of Montana elections."
The Court quoted ATP's 2010 Election Year Program Executive Briefing, which said, "Finally, we're not required to report the name or the amount of any contribution that we receive. So, if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible. The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this."
Montana's top court also cited UM history professor Harry Fritz's affidavit, in which he warned that "the dangers of corporate influence remain in Montana. 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."
In short, Montana's Supreme Court found that our law allowing the formation of political action committees "is an easily implemented and effective alternative to direct corporate spending for engaging in political speech."
Justices Beth Baker and James Nelson dissented from the majority opinion, saying the Citizens United decision overruled Montana's law. Although Nelson added he "never had to write a more frustrating dissent," he wrote, "In sum, what has happened here is essentially this: The Supreme Court in Citizens United...rejected several asserted governmental interests; and this court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a 'Made in Montana' sticker on them and held them up as grounds for sustaining a patently unconstitutional state statute."
For now, Montana's battle to preserve electoral integrity has come down on the side of the citizens and campaign-funding transparency. How long Montana's law will stand, and which justices are right or wrong in their opinions, is anyone's guess.
To read the entire fascinating and historic 80-page ruling as well as the dissenting opinions, go to courts.mt.gov/supreme.
Helena's George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at email@example.com.