Two different views on the Corrupt Practices Act ruling

Pro: Keep politics honest in Montana

From the perspective of states’ rights and protecting the long-standing will of Montana citizens, the litigation to preserve the state’s Corrupt Practices Act has been a worthy fight.

And fortunately, the Montana Supreme Court recently affirmed the 100-year-old law despite the U.S. Supreme Court’s Citizens United decision that provides protections for corporations to participate in the political process. That sets up a conflict between the two rulings, of course, but Montana Attorney General Steve Bullock is confident the state has a solid constitutional case.

“The Citizens United decision dealt with federal laws and elections — like those contests for president and Congress,” Bullock said in defense of the state law. “But the vast majority of elections are held at the state or local level and this is the first case I am aware of that examines state laws and elections.”

The 1912 law had three main provisions, but the part which the Western Tradition Partnership and its two co-plaintiffs sought to overturn declared 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 political party.”

The state Supreme Court upheld that provision as necessary and fair, despite that U.S. Supreme Court’s precedent because it determined that the law allowed a suitable alternative by giving corporations the right to establish a “separate segregated fund to be used for making political contributions.”

Ultimately, it comes down to a matter of transparency in campaign financing, and here there is no room for Montana to budge.

It is not about the false claim that the state’s campaign finance laws somehow muzzle the political voices of corporations. Corporations are still free to form political action committees that can support or oppose any candidates or issues they choose to. PACs, however, must report the sources of their contributions and how they spend those contributions.

Montana Chief Justice Mike McGrath pointed out in his majority opinion that the intent of the lead plaintiff, Western Tradition Partnership, “is to act as a conduit for funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections ... WTP seeks to make unlimited expenditures in Montana elections from these anonymous funding sources.”

There are good reasons why Montana voters passed the Corrupt Practices Act in 1912 through a citizens initiative. It was in response to the dominating influence of the Copper Kings with elections and public officials.

“Bribery of public officials and unlimited campaign spending by the mining interests were commonplace and well known to the public,” McGrath wrote.

There’s nothing wrong with corporations being able to weigh in on political matters that can be of huge consequence to them. But there is also nothing wrong with laws that provide a degree of transparency in politics and protections against corruption.

Con: Keep the courts honest in Montana

The Montana Supreme Court did what it thought was the “right” thing Friday when it overturned a District Court ruling that overturned the 1912 Corrupt Practices Act, but it most definitely did not do the “constitutional” thing.

It is pretty obvious when reading through the court’s majority opinion, as delivered by Chief Justice Mike McGrath, that the five justices feel pretty strongly that corporations have no place in politics. In fact, the ruling sounds more like advocacy than adjudication.

But it is not the state court’s role to say what it wishes were so — only to interpret and apply the laws of Montana, and in the most significant cases to determine whether those laws are constitutional.

It is most certainly not the state Supreme Court’s role to reject rulings by the U.S. Supreme Court and explain why the plain language of the federal court can be ignored just because we Montanans don’t like it.

Much more intellectually honest, and judicially appropriate, is the approach of dissenting justice James C. Nelson, who acknowledges up front that he disagrees with the U.S. high court’s Citizens United ruling, but nonetheless concedes that it is the law of the land and must therefore, however grudgingly, be followed

There is no place for individual states to carve up exceptions to federal laws that they don’t like, and there is no place for individual courts to determine what parts of constitutional law they think should apply in their jurisdictions. The Montana Court’s attempt to use the state’s troubled history of corporate influence on state politics as a reason to avoid the consequences of the High Court’s ruling is “disingenuous” at best (as Nelson asserted) and dangerous at worst.

If allowed to stand, it would be the equivalent of Mississippi arguing in the 1960s that it did not have to give up its “Jim Crow” laws depriving blacks of their civil rights because of the state’s strange and troubled history of race relations. The unique permutations of history do not, however, give individual states the right to create “exceptions” to federal law that they don’t want to follow.

The Citizens United ruling is plain. As the district court cited, “The government may not prohibit independent and indirect corporate expenditures on political speech.” But now the state Supreme Court wants to add three words to that unequivocal sentence — “except in Montana.”

The federal court already rejected all the arguments that Montana asserts give it a variety of governmental interests in restricting free speech. But the state court blithely ignores Citizens United and maintains that somehow Montana is “different” than the other 49 states.

As Nelson declared in his dissent, “This [state Supreme] Court has ... come along, retrieved those [governmental] interests from the garbage can, dusted them off, slapped a “made in Montana sticker” on them, and held them up as grounds for sustaining a patently unconstitutional statute.”

Good for Justice Nelson for voting for what he thought was the “constitutional thing” instead of what he thought was the “right” thing.

That’s what we used to call the rule of law.