On the rare occasions when the world talks to you in stereo, it’s a good idea to set aside your knitting and listen. This week, Americans got their first good look at what super PACs—political organizations that can receive unlimited corporate contributions and make unlimited expenditures for federal candidates—have wrought in Iowa. At the same time, the Montana Supreme Court issued a stunning opinion last Friday, upholding the state’s law limiting corporate election spending. Think of the two as a sort of woofer and tweeter for life in a post-Citizens United world.
The impact of the so-called super PAC on the Iowa election has been profound. Just ask Newt Gingrich, who was clobbered by almost a third of the more than $14 million in super-PAC ad money spent in the weeks before the caucus. When the court handed down that decision in 2010, it assumed both that these expenditures would be independent of the candidate’s official campaigns (they’re not; one is financed by Jon Huntsman’s dad) and that disclosure rules would ensure that Americans knew who was buying and selling their elections (we don’t).
Ruth Marcus has a great piece explaining all the ways in which the super PACs are both coordinating with campaigns and evading federal disclosure requirements. She notes that this was the inevitable consequence of both the Citizens United decision and subsequent lower-court rulings. Whether he meant to or not, she writes, Justice Anthony Kennedy, with his majority opinion in that case, managed to “clear the path for independent expenditure committees backing a particular candidate—and bankrolled by the candidate’s father or run by his former top aides.”
Democracy 21 issued a report today questioning whether these candidate-specific super PACs can possibly meet the legal requirements of “total independence” from the campaigns, as required by the language of Citizens United. That’s the problem when you give corporations the same First Amendment rights as citizens. It’s not just that the resulting citizens are louder and meaner than regular people. They also refuse to tell you who they are and how much a gently worn candidate is selling for these days.
Prof. Richard L. Hasen explained all this back in October, pointing out that the fundamental flaw in Justice Kennedy’s majority opinion in Citizens United lay in his assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That sentence opened the door to super PACS and ignored the reality of everything we all know about the corrupting influence of unlimited money on a political campaign.
Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. 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. The Montana law was enacted in 1912 and provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." After the Supreme Court handed down the Citizens United decision in 2010, many similar state laws were struck down by the courts or repealed, and a lower court in Montana agreed that the Montana ban was unconstitutional as well, finding that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.”
But 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.” Noting that, back in the last Gilded Age, Montana's wealthy "Copper Kings" bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.
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?” The majority went out of its way to note that unlimited campaign spending on judicial elections is also having a profoundly damaging effect on judicial integrity all around the country.
Two justices dissented from this view, insisting that the court was bound to follow the decision in Citizens United. But one of the two dissents, Justice James C. Nelson, unloaded on that Supreme Court decision with Scalia-like levels of derision and scorn. “Corporations are not persons,” writes Nelson. “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." Just in case that wasn’t crystal clear, Nelson goes on to add that “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."
There’s a lot to love in both the majority opinion and Nelson’s heartfelt dissent. But as Eugene Volokh notes, the opinion practically begs to be overturned at the Supreme Court. (Dissenting Justice Nelson agrees and even says the court will summarily reverse it.) But whereas Justice Kennedy’s opinion in Citizens United seemed to be rooted in the thin vapors of his own aspirational First Amendment thinking, the Montana Supreme Court fixed its focus on the actual corrupting influence of the groups suing to overturn the ban. Thus Western Tradition Partnership, the lead plaintiff in the case, merits extra special scorn from the court for circulating a fundraising brochure that said, “If you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you made this program possible.” The majority openly accuses WTP of being responsible for “a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements.” The Montana majority, in other words, knows exactly what Justice Kennedy seems to have missed: That corruption is corruption regardless of its packaging, and that it rarely comes with a detailed disclosure label.
More fundamentally, the majority and one dissenter seem to understand perfectly how much the American people resent being lied to about the burning need for courts to step in to protect the oppressed voices of powerless corporate interests. As Judge Nelson wrote in dissent, “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping.”
And that may be the very best part of this week’s Iowa/Montana/Citizens United smash-up. You see, Montana elects its Supreme Court justices. And while I still oppose judicial elections for all my old high-minded philosophical reasons, I can’t help but relish the idea that their decision to politely decline to follow Citizens United wasn’t merely a rebuke to the checked-outedness of five members of the U.S. Supreme Court. It was also an early judicial campaign ad. An elected court that knows a bit about the corrupting influence of big money on judicial elections running against the idea of big money corrupting elections. It’s kind of poetic, really. . Matt Taibbi is right when he says Americans have grown awfully tired of corporate candidates powered by corporate interests whose voices have now been amplified by corporate courts. I think what we just saw in Iowa and Montana proves again that corporations aren’t really people, money isn’t really speech, and that saying so isn’t just a way of speaking truth to power. It might just win you an election, too.