By Jeff Milchen
First published January 12, 2012 in the San Francisco Chronicle
On December 30, the Montana Supreme Court issued a stunning ruling, rejecting arguments that the U.S. Supreme Court’s landmark decision in Citizens United vs. FEC applied to Montana’s century-old ban on direct corporate election spending. The 5-2 ruling overturned a lower court and reinstated Montana’s Corrupt Practices Act, a citizen initiative passed to confront some of the most overt corporate corruption in American history.
While the Montana ruling detailed several ways in which the Corrupt Practices Act differed from the federal statute struck down in Citizens United, the justices clearly rejected much of the U.S. Supreme Court’s rationale. The Citizens United ruling struck down a federal law prohibiting corporations from directly spending company funds to advocate for or against political candidates.
One key distinction in Montana’s case was that the state presented extensive evidence of actual corruption, which the U.S. Supreme Court found lacking in Citizens United. And while that case did not address nonpartisan and judicial elections, Montana’s law protects the very justices who decided the case from being intimidated or corrupted.
Of course, money drowning out the voice of citizens can happen in almost any election now, thanks to the U.S. Supreme Court bestowing Bill of Rights protections upon corporations – entities never mentioned in our Constitution. Justice Kennedy’s majority opinion in Citizens United also asserted that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” a view rejected by the Montana Justices.
That astounding claim promptly birthed super PACs, which can accept unlimited donations to support their favored candidate and attack his or her opponents. Fittingly, an obvious victim of super PACs in the current presidential primaries is Newt Gingrich, who previously hailed Citizens United as a “great victory for free speech.”
In November and early December, Gingrich sat atop Republican primary polls. Then, in December, he was slammed by about $4 million worth of negative ads by Restore Our Future, an “independent” super PAC controlled by Mitt Romney supporters, including his 2008 campaign director.
The ad blitz drove down Gingrich’s poll numbers immediately, and he finished a distant fourth in the Iowa Caucus, won by Romney.
All of the Republican contenders have such PACs working on their behalf. By the time the public knows the people or corporations behind the super PAC attacks, four primaries will be complete and the winner may be apparent. According to the U.S. Supreme Court’s reasoning, the investments of PAC donors will earn them no influence with Romney.
Perhaps the presidential primaries will further alter the battle lines for campaign finance disputes. Bob Brown, a Republican fixture who served in Montana’s legislature and as Secretary of State, provided testimony arguing the ban on corporate spending was necessary to preserve political integrity.
Montana’s history of blatant corruption persuaded even the state ACLU Foundation to file a brief defending the Corrupt Practices Act. The move startled election law followers, because the national ACLU called (pdf) the similar federal law “suppression of core political speech” in Citizens United and has challenged election spending limits for decades. (The national ACLU has not yet altered its advocacy for “corporate free speech.”)
Independent business owners are another nontraditional ally for reformers that spoke out to uphold Montana’s corporate spending ban, both individually and working with the American Independent Business Alliance. Small businesses increasingly recognize they lose out when large corporations are permitted to translate their wealth into political power that yields tax loopholes, subsidies and other preferential treatment.
The Montana Court’s rebuke of Citizens United was a legal first, but could be considered part of a broader public uprising. Los Angeles and New York City top a growing list of cities to formally call for a constitutional Amendment to explicitly state that Bill of Rights protections apply to human beings, not corporations.
Of course, one island of relatively uncorrupted elections does little for the rest of our country. The Montana ruling is cause for celebration, but its value can only be realized if other states and courts follow. An appeal to the U.S. Supreme Court is likely and, without far more visible public advocacy for the democratic republic promised by our Constitution, the Roberts court is unlikely to veer from its agenda of steadily enlarging corporate privilege.
Let’s not forget that the Supreme Court is a political institution that responds to sufficiently broad and deep expressions of public opinion, as it did previously with many civil rights concerns. We can’t wait in hope of more enlightened justices — we must make the current ones see the light.
For more on why independent business advocates are engaged, see Granting Corporations Bill of Rights Protections Is Not “Pro-business.“
A survey released on January 18, 2012 showed that small business owners, by a margin of 7 to 1, believe that allowing corporations to engage in direct electioneering harms small business.
Jeff Milchen is a co-founder of the American Independent Business Alliance, a network of 80 community organizations supporting local independent businesses. AMIBA was party to amicus curiae briefs in both Citizens United v FEC (pdf) and Western Tradition Partnership v Montana (pdf).
- Big Sky Big Money is a PBS Frontline program covering this topic (2012)
- Dark Money is a documentary that also focused on Montana’s history and is relevant nationally.