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Montana court opinion takes aim at Citizens United decision


This news story was published on January 4, 2012.
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By Kim Murphy, Los Angeles Times –

SEATTLE — Montana has engaged in a long, slow dance between corporations and politicians through much of its history. The free-spending audacity of the copper kings during the early 20th century — when the Anaconda Co. controlled judges, legislators and newspapers, and business magnate W.A. Clark bought himself a seat in the U.S. Senate — are the stuff of Western lore.

In an attempt to fight back, Montana voters in 1912 passed an initiative barring direct corporate contributions to political candidates and parties, a law that like those in many states across the country was undone by the U.S. Supreme Court’s controversial decision in 2010 that gave corporations the same First Amendment rights as citizens to spend their way into the nation’s political debates.

But the Montana Supreme Court has issued a forceful rebuke of the decision that has opened the door to game-changing, free-spending corporate contributions in the current election season. In a new opinion drawing on decades of Montana’s coal mining and copper mining history, the state court upheld the state’s 1912-era corporate contribution limits, concluding that “the corporate power that can be exerted with unlimited political spending is still a vital interest to the people of Montana.”

The decision, handed down last week, applies only to state elections in Montana. But if it is appealed as expected, the case could provide the long-awaited vehicle critics have sought for the U.S. Supreme Court to revisit the issue of corporate contributions decided in the Citizens United case. That case struck down federal government prohibitions on such donations, called into deep question laws like Montana’s in 24 states, and opened the door to large and often anonymous corporate expenditures in campaigns across the country — including the hotly contested U.S. Senate campaign now under way in Montana.

In a 5-2 opinion, the court’s majority concluded that Montana’s long history of well-funded natural resource extractors, small population and historically inexpensive political campaigns allows it to demonstrate the kind of compelling government interest in regulating corporate financial muscle that the court said is allowable even under the U.S. Supreme Court’s broad First Amendment guarantees for corporations.

Indeed, even one of the justices who dissented — arguing that the U.S. Supreme Court left no room for states to exempt themselves — argued forcefully against the broad corporate latitude encompassed in the Citizens United decision.

“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 creatures of government,” Justice James C. Nelson wrote in his reluctant dissent.

“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,” he wrote.

The Montana case centered on a constitutional challenge by the group American Tradition Partnership, which has funneled large amounts of money in lobbying efforts to battle environmental regulations seen as undermining jobs and economic development.

“Crush Gang-Green and their Anti-Business Allies!” the group says on its website. In a fundraising appeal cited by the court, the group boasts of the anonymity it offers corporate donors.

“As you know, Montana has very strict limits on contributions to candidates, but there is no limit to how much you can give to this program,” the appeal states. “No politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible.”

Montana’s Attorney General, Steve Bullock, a Democratic candidate for governor who personally argued the case, said the state demonstrated that business in Montana can easily contribute through political action committees with a minimum of regulatory hurdles.

At the same time, he said, the potential impact of unlimited corporate spending is disproportionately large in a state like Montana. “It doesn’t take a heck of a lot of money to wind up influencing a state election where our average legislator ends up winning I think on $17,000,” he said in an interview.

“Montana has a long history of corporate influence in elections, and ultimately the citizens are saying no, that’s not how we want to run our elections,” he said.

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