The Montana Supreme Court
Western Tradition Partnership, Inc. v. Attorney General, which upheld Montana’s statute regulating corporate contributions to political campaigns, is a very amusing opinion. It’s been a long time since a state supreme court has so brazenly tried to evade a U.S. Supreme Court decision–in this case Citizens United. We learn, among other fascinating details, that Citizens United was really a fact-bound case that need not be followed if a different record is presented to a court. And we also learn that there is a Montana exception to the First Amendment, at least with respect to campaign finance regulation
Equally entertaining is Justice Nelson’s dissent, where he lambasts Citizens United while concluding that the case requires the invalidation of the Montana law. “In my view,” he says, “Citizens United has turned the First Amendment’s ‘open market-place’ of ideas into an auction house for Friedmanian corporatists.” (I must admit that I didn’t know that Milton Friedman was a corporatist, an adjective, or interested in campaign finance.) Justice Nelson also rejects the marketplace of ideas metaphor:
“[V]oters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half-truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse, and disenchant voters.”
Finally, his dissent goes after the idea of corporate personhood:
“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.”
Now I agree with the last argument to this extent–it is perfectly clear that the Framers of the Fourteenth Amendment (Bingham especially) did not intend the word “person” in the Due Process Clause to include corporations. Originalists don’t seem to care about this. Nevertheless, the more important point, which I’ve made before, is that campaign finance regulation is a huge waste of time. If half of the energy spent of that goal were spent on diminishing partisan gerrymandering of legislative districts, the improvement in the political process would be far greater.