Citizens divided 

On Dec. 30, Montana's Supreme Court issued a stunning rebuke to the U.S. Supreme Court's 2010 Citizens United decision that infamously decreed corporations had constitutional rights to directly spend money on "independent expenditures" in campaigns.

Western Tradition Partnership, an evasive Colorado political organization that sought to dismantle several campaign laws in Montana, found itself on the losing end of the ruling, which reaffirmed a century-old right to regulate corporate involvement in elections. (Late last week, the group, which has changed its name to American Tradition Partnership, announced its intent to take the case to the U.S. Supreme Court.)

The Montana Court's rebuke of Western Tradition Partnership's challenge to its 1912 state law banning corporate involvement in elections came in an 80-page ruling that also threw down a legal gauntlet before the Supreme Court's Citizens United decision.

The Montana Court said Western Tradition Partnership's style of electioneering — based on not registering as a political group with Montana agencies, not reporting contributions or expenditures — was at odds with their state's political traditions and values.

"Organizations like WTP that act as conduits for anonymous spending by others represent a threat to the 'political marketplace,'" wrote Mike McGrath, Chief Justice of the Montana Supreme Court, for the majority. "Clearly the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens."

A nuanced view

The ruling, which overturned a lower court decision, is remarkable in many respects. Throughout the document, even in a lengthy dissent by a justice who felt Montana was duty-bound to abide by the U.S. Supreme Court ruling, the Montana court attacked the thinking behind the 2010 Citizens United decision and the impact of big money in political culture.

"While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the [U.S.] Supreme Court's decision," wrote Justice James C. Nelson in his dissent. "And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate 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."

"It should be noted that Montana's Corrupt Practices Act was adopted in 1912 at a time when the country's focus was on preventing political corruption, not on protecting corporate influence," wrote Nelson later in his dissent.

As the lead group that sued to overturn the Montana ban (it was joined by a Montana sportsman's group and a businessman), Western Tradition Partnership followed a very deliberate course of clashing with virtually every aspect of Montana campaign finance law. The lawyers behind the litigation believe they should face no limits or accountability for any political fundraising or spending.

The Montana Supreme Court's majority opinion also noted how Western Tradition Partnership claimed it should be allowed to spend freely because the group would have to disclose that activity under Montana law. At the same time, the state's Chief Justice noted, the same group, using its new American Tradition Partnership name, had actually sued the state to overturn those very disclosure laws.

The organization is involved in a third suit challenging the state's campaign spending disclosure law.

Lawyers attacking the Montana ban on direct corporate spending said the U.S. Supreme Court in its 2010 Citizens United ruling removed any barrier to corporate spending. But the Montana Supreme Court disagreed and took a more nuanced view.

State interests

The U.S. Supreme Court in Citizens United found there was no compelling reason why a nonprofit corporation that produced an anti-Hillary Clinton video should be prevented from showing that video in the weeks before Election Day — as a new federal campaign law had banned. But the Citizens United ruling did not remove all bans on corporate speech, the Montana court said.

"The Supreme Court held that laws that burden political speech are subject to strict scrutiny, which requires the government to prove that the law furthers a compelling state interest and is narrowly tailored to that interest."

The Montana Court then launched into detailed explanations of sufficiently compelling state interests to merit sustaining the century-old law. The majority opinion read like a history lesson, recounting how the state, especially in the decades following its founding in 1889, struggled to restrict the power and influence of mining corporations.

In 1906, the citizenry amended the state constitution to allow for voter ballot initiatives. Six years later, it passed the ban on corporate spending, specifically to curb the influence of mining companies based in Butte.

The Court said Montana had a political tradition that has emerged in intervening decades, and they wanted Montana to remain a state where candidates run low-budget, personal campaigns and do not rely on anonymous, well-financed messaging from outsiders.

The Court pointed out that judicial elections were particularly vulnerable to anonymous spending by large corporations. Montana's 2008 chief justice race had advertising from all candidates costing about $60,000, it noted. "It is clear that an entity like Massey Coal, willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices."

'Entirely offensive'

Justice Nelson, who dissented because he believed that the state had to follow the U.S. Supreme Court's ruling, concluded by fervently disagreeing with the assumptions behind the Citizens United ruling, starting with the assumption that spending large sums in campaigns was not inherently corrupting.

Nelson said independent expenditures by corporations in political campaigns — where political players are not supposed to coordinate their actions with candidate campaigns — absolutely were noticed and influenced the lawmaking process.

"In the real world of politics," he wrote, "the 'quid pro quo' of both direct contributions to candidates and independent expenditures on their behalf is loyalty. And, in practical effect, experience teaches that money corrupts, and enough of it corrupts absolutely."

Nelson closed by slamming the legal theory of corporate personhood — that corporations, because they are run and owned by people, should have the same constitutional freedoms as individuals under the Bill of Rights.

Corporatist judges believe that corporations and people are indistinguishable under the law. In contrast, constitutional conservatives point out that the framers of the U.S. Constitution distrusted large economic enterprises and drafted a document to protect individual businessmen, farmers and tradespeople from economic exploitation.

"While I recognize that this doctrine is firmly entrenched in the law," Nelson began, "... I find the entire concept offensive. 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."

Steven Rosenfeld covers democracy issues for AlterNet, where a version of this story first appeared, and is the author of Count My Vote: A Citizen's Guide to Voting (AlterNet Books, 2008).