The Montana Supreme Court has rebelled against the U.S. Supreme Court’s Citizens United ruling that gave birth to the SuperPAC.
The Montana Supremes decided last week that, in Montana at least, corporate funds can be banned from politics.
It seems likely that the Montana ruling will be overturned. But perhaps the ruling can be the occasion for the U.S. Supremes, now that it’s clear what the Citizens United ruling has wrought, to improve the situation, especially since several key elements of the logic underpinning Citizens United have turned out to be fantasy.
Slate’s Dahlia Lithwick has a great summary. I’ll mention a few key points.
The 2002 McCain-Feingold campaign finance reform law had barred corporations and labor unions from using their treasuries to pay for campaign ads. In Citizens United, the U.S. Supremes struck down that provision, thereby allowed corporations to make unlimited contributions as long as the money went to “independent” groups, not to the candidates own campaigns. That was a 5-4 ruling, written by the swing justice, Anthony Kennedy.
Kennedy ruled that while the government has a legitimate interest in preventing political corruption, that corporations spending unlimited amounts on campaign ads would not be corrupting because:
a) they would be required to operate independently of the candidates’ own campaigns and
b) all contributions would be disclosed.
Both elements of Kennedy’s logic were almost immediately flouted. Karl Rove and others figured out how to do it and the 2012 campaign has become a demonstration project for the fully developed loophole.
The SuperPACs are not independent as earthlings would use the word. SuperPACs operating on behalf of Mitt Romney and Newt Gingrich are run by Romney’s and Gingrich’s own former political aides. The one that supports Jon Huntsman Jr. has received millions of dollars from Huntsman’s billionaire father, Jon Huntsman Sr.
Presumably, the people running these “independent” groups are smart enough not to talk directly to the candidate or the campaign from which they are independent, but give me a break.
The SuperPACs have highly informative names like “Restore Our Future” (pro-Romney), “Make Us Great Again” (Rick Perry), “Winning Our Future” (Gingrich) and “Our Destiny” (Huntsman), so the tag lines of their ads don’t even tell the viewer which candidate to associate with the message.
That’s especially true because, as the SuperPACers and the campaigns quickly figured out, SuperPACs can air the dirty ads, which attack the opponents but don’t even mention the candidate they are trying to help, freeing up the candidate to run the positive ads so that their “I approved this message” tagline isn’t associated with the nasty stuff.
As Justice Kennedy saw the future, disclosure was supposed to be the other key corruption-fighting strategy. But the Iowa caucuses are over, the New Hampshire primary is tomorrow, SuperPACs have spent many millions and have so far been able to avoid disclosing which corporations are paying for their activities.
The Montana case
In 1912, after seeing their politics polluted by mining interests buying elections and bribing office holders, the voters of Montana adopted by initiative a law banning corporate money from state politics. Other states have similar laws but, since Citizens United, those laws have been falling. The lawsuit challenging the Montana anti-corruption law was intended to bring about the same effect in Montana. But by a surprising 5-2 majority, the state Supreme Court refused. As Lithwick wrote in Slate:
“The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does…
“By a 5-2 margin, Montana’s high court determined that the state law survived ‘strict scrutiny’ because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United. In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the ‘tumultuous years … 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.’
“…McGrath lays it out this way: ‘The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections?’”
Two Montana justices did vote to strike down the state law, but Justice James C. Nelson, one of those two, wrote separately to express his contempt for one element of Citizens United, which relied on previous Supreme Court rulings declaring that corporations enjoy the constitutional rights of persons.
“Corporations are not persons,” Nelson wrote. “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…
“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.”
Although they are rare, there have been occasions when the U.S. Supreme Court has reversed itself. I doubt it will happen here. But it’s possible to imagine that when the Montana ruling gets to Washington, Justice Kennedy might take into account what has actually occurred under the ruling and perhaps try to find some new language that would make it a little harder for the big money to flood the airwaves with half-truths without the viewers even knowing whose messages they are receiving.