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.


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16 Responses

  1. Joe says:

    One problem with focusing on corporations was that ultimately the CU majority thought corporations were providing information to flesh and blood people. They are the ultimate ones protected. And, none of the nine thought corporations didn’t have some sort of free speech rights. The debate was over the reasonable regulations. I agree with your final point to some degree. I fear regulation, however made in good will, is of the water in need of an outlet category. The best solutions are elsewhere. OTOH, it’s harder to respect the USSC after the Arizona public financing ruling.

  2. Ken Rhodes says:

    Irrespective of the contentious issus(s) involved, I am delighted you published this post, because so many of the quotations are memorable.

  3. Andrew Kaufman says:

    “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.”

    But the Senate, which is not gerrymandered, suffers from just as poor (if not poorer) a political process than the House, yes?

  4. Gerard Magliocca says:

    State legislatures are also important.

  5. Brett Bellmore says:

    I have to disagree, campaign finance regulation is not a waste of time. That would be an improvement.

    Campaign finance ‘reforms’, written and implemented by incumbents, are nothing less than a covert attack on challengers and third parties, and campaign reformers are just their indispensable “useful idiots”.

    Banning huge donations by the wealthy? Makes sure challengers have to spend all their time raising money in small amounts, rather than campaigning.

    Leveling the playing field? Incumbents know they have non-financial advantages due to already being in office, and that a challenger who can’t outspend them is basically doomed from the start.

    Banning “electioneering communications” by independent groups? Nothing more annoying than independent groups bringing up issues you and your duopoly opponent have agreed not to talk about.

    Campaign ‘reforms’ are how the system is rigged. Any more ‘reforms’ and we may as well stop holding elections, they’ll be so futile.

  6. Shag from Brookline says:

    Drawing bright lines on First Amendment issues can be difficult. Citizens United seems to have crossed the line. I just finished reading Kermit L. Hall and Morris Urofsky’s “New York Times v. Sullivan” (Univ. Press of Kansas, 2011). The authors’ take on the case is that while it was a First Amendment case, it was also a civil rights case. There is an excellent review of the book at H-Law. A link is provided at the Legal History Blog. I read many reviews on H-Law but do not have the time to actually read that many of the books reviewed. I recall well the issues with the case as it arose in 1960 when I was 30 years of age practicing law. While the review was excellent, there was some criticism for suggestions by the authors that the case resulted in southern cultural clashes for some southern moderates at the time. (Do we have a meaningful definition of souther moderates at that time?) Having read other writings of Prof. Urofsky, this raised my antennas and fortunately my local library had the book, which runs about 200 pages and is a fast read as it is without footnotes, a real page turner for me. The reviewer’s criticism did not surface in my reading until the final short chapter 11 “Coda: Civility and Reputation.” But that aside, the book analyzes well the context of the case with the civil rights movement starting with Brown v. Board of Education. As I read it, I thought of the 2012 presidential campaign underway. Is there any doubt that but for Brown, NYT v. Sullivan, the 1960s civil rights laws, etc, Obama would not have been elected President in 2008? Brown seems to have been fully accepted and its wisdom seems no longer to be seriously challenged openly. Yet during the current GOP presidential campaign, issues of race have surfaced on the part of several candidates. Are there backdoor challenges to Brown, NYT v. Sullivan, etc, rather than direct challenges?

    Did NYT v. Sullivan draw a bright line? No. Did the case contribute to the result in Citizens United? Perhaps. Has Citizens United drawn a bright line? Maybe not with the Montana critique. Perhaps other states will follow Montana. Consider the current GOP presidential nomination race and the dueling Super-Pacs. Will the utilization of Citizens United in action shortly after that decision came down get We the People more involved in either challenging Citizens United or benefiting by learning more about the candidates and the issues? I await the steps that Stephen Colbert may take with his Super Pac in South Carolina.

    This is a welcome post – and timely as South Carolina gets closer.

  7. Bill Reynolds says:

    God bless the Montana Supreme Court. Not that they were right, but it had given me something plausible to talk about in class. I used to bless Jessie Helms in the same way (crazy hypos–no, something for the real world to deal with

  8. Shag from Brookline says:

    Take a peek at yesterday’s Colbert Report demonstrating resolution of the Super Pac coordination problem accomplished more overtly than the non-coordinating Super Pacs of Romney, Gingrich and Perry, all products of Citizens United, if Colbert decides to run in the GOP presidential campaign in South Carolina. My concern is whether Stephen Colbert will drown the humor of the South Carolina process as the GOP candidates do their standup campaigning with choruses of their respective non-coordinating Super Pacs as background. How much laughter can the voters of South Carolina take? And will SCOTUS take note of the results of its Citizens United (5-4) decision? Will “We the People” be laughing? If so, at whom?

  9. Joe says:

    The use of “Citizen United” as shorthand does possibly raise problems. Wendy Kaminer, a libertarian whose positions on certain issues will not please the right, suggests:

    To take a for instance, the lack of “transparency” … CU upheld disclaimer and disclosure rules. Political inertia, not CU, blocked the DISCLOSE Act.

  10. Shag from Brookline says:

    While Citizens United may not be ” … the root of all campaign finance evils … ” it has significantly contributed to such evils. Stephen Colbert, with tongue in cheek or ratings/mischief in mind, was quite transparent regarding his Super Pac, including its creation and transfer to Jon Stewart to assure that it would be a non-coordinating Super Pac that just might (wink, wink) support Colbert if he goes beyond the exploratory stage in deciding whether to run in the South Carolina GOP presidential race. What could be more transparent than such steps being taken openly with his attorney present with the paperwork for both the creation and the transfer. Consider Romney’s verbal gymnastics in a recent debate where Newt challenged Romney’s Super Pac for saying nasty things about Newt in Iowa, with Mitt’s denial of having seen the Super Pac ad and seconds later referencing several of the ad’s points that Mitt claimed were true, while denying coordination. The use of Citizens United as shorthand exposes the many problem with campaign financing that Citizens United significantly contributed to [just as Dred Scott is shorthand for the evils of slavery despite some originalists’ claims that it followed the Constitution].

  11. Joe says:

    Colbert’s amusing and crafty (useful to have a former FEC chair on board) bit underlines the point in a way since corporations as such isn’t the problem there — having rich individuals use Super PACs in that fashion as compared to some corporation with limited funds (as most have, the concern the small number with big funds) is not something merely overturning CU itself is going to address.

  12. Shag from Brookline says:

    The Arts Section of the NYTimes today (1/14/12) features Jason Zinoman’s “Beneath a Deeply Silly Campaign, A Deeply Serious Performer” all about Stephen Colbert’s political foot in the door of South Carolina’s GOP presidential race. With humor, perhaps citizens will unite in this deeply silly campaign fueled by the shorthand (but deep pocketed) Citizens United and its contribution to the silly season. Barbra Streisand is singing in the background “People Who Need Corporations Are The Silliest People (Politically Speaking).” I can imagine years from now a constitutional scholar writing a book on “Rehabilitating Citizens United.”

  13. Shag from Brookline says:

    Not to pile on the shorthand of Citizens United, but take at look at today’s LATimes editorial “Hunted by the ‘super PACs” described below the title “Conservatives applauded the Citizens United ruling. But now GOP candidates are feeling the heat.” Perhaps Citizens United may actually end up uniting citizens.

  14. Shag from Brookline says:

    [Definitely piling on!] The NYTimes website feature “The Loyal Opposition” of Andrew Rosenthal posts “Super PACs Explained” that includes a link to the Colbert Report referenced in my earlier comments. Rosenthal briefly comments on Newt’s request of “his” Super PAC to correct errors in recent attacks on Mitt and the issue of “non-coordination.” If Newt’s Super PAC fails to comply, that might clearly demonstrate “non-coordination.” Query whether compliance with Newt’s request might demonstrate the proscribed coordination? Honesty may not always be the best policy politically.

  15. Ken Rhodes says:

    In re the cited Atlantic column by Wendy Kaminer:

    What’s apparent is that “Complicated and confusing, corporate finance and IRS tax law are apparently beyond the ken of Wendy Kaminer.” Quoting this column is the equivalent of saying “It must be true, cause I read it on the Internet.”

  16. Joe says:

    I’m not sure what Ken Rhodes is specifically concerned about.

    I cited her as an example of the “possible” problems of citing CU too loosely, noting as an example of what one person “suggests.” Does Mr. Rhodes dispute what Kaminer argues regarding the NYT piece? If so, how?

    Also, how — especially with qualifiers like “possible” and “suggests” — is the mere quoting of the column the equivalent of saying “it must be true”?