Open, Accountable Government
Has the Supreme Court United Against Citizens' Participation in Government?
By refusing to hear American Tradition Partnership v. Bullock, the Montana case on corporate election spending, the U.S. Supreme Court reaffirmed on June 25 that corporations can spend unlimited money to influence the outcome of political campaigns.
One hundred years ago, Montanans passed a ban on corporate spending in elections. This came after an election in 1894 when two "copper kings" – out-of-state copper industry magnates – spent $17 million trying to buy the statehouse. Political corruption became so blatant in the state that in 1899, the U.S. Senate refused to seat William Clark after he bribed state legislators to choose him for Montana’s Senate seat. (At that time, state legislatures elected U.S. senators.)
The people of Montana fought back by enacting the state's Corrupt Practices Act, which included a ban on corporate spending in political campaigns. Montana's law decreed that a "corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." In American Tradition Partnership, the Montana Supreme Court described the Corrupt Practices Act as necessary to ensure that Montanans and their elected representatives, rather than corporations, were governing the state. The court also pointed out that even Clark agreed that the influx of political spending by corporations had discouraged citizens from voting.
But in 2010, the U.S. Supreme Court ruling in Citizens United v. Federal Election Commission declared that corporations have the right to make independent expenditures and attempt to influence political campaigns because "political speech does not lose First Amendment protection simply because its source is a corporation."
As a result of this ruling, American Tradition Partnership, a 501(c)(4) "social welfare organization," argued that the Montana law had been overruled by Citizens United, which the group understood to ban all restrictions on independent expenditures by corporations. Montana’s Supreme Court disagreed, ruling that Citizens United would allow restrictions on corporate political speech if the government could demonstrate that the restrictions were as minimal as possible to achieve a compelling governmental interest. The Montana court decided that the state’s demonstrated history of corporate vote-buying, which had allowed corporations to take over the government and discouraged people from participating in the democratic process, was sufficiently compelling and the Corrupt Practices Act restrictions were sufficiently narrow that the law should stand. The U.S. Supreme Court promptly issued a stay of that decision, essentially ensuring that until they could actually overturn the Montana Supreme Court's decision, everyone would have to act as if they'd already done so.
Two justices – Ruth Bader Ginsberg and Stephen Breyer –agreed with the Montana Supreme Court's argument that the state's history demonstrated that corporate spending on political campaigns can corrupt democracy. They also described the case as "an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."
Nonetheless, on June 25, the U.S. Supreme Court issued a 5-4 decision striking down Montana's law – without ever hearing arguments in the case. (This happens a few times each term, usually indicating that the majority of justices feel the result is so obvious that full arguments aren't necessary.)
For those fighting to remove all limits on campaign spending, this decision may only be the first step. American Tradition Partnership – like the U.S. Supreme Court in Citizens United – argued that disclosure laws, rather than outright bans on political contributions, would guard against corruption or the appearance of corruption. But the Montana Supreme Court pointed out that the organization making this argument is also involved in a separate, simultaneous lawsuit asserting that those same disclosure laws are unconstitutional restrictions of the freedom of speech.
Other advocates for unlimited corporate political spending are making similar arguments. For example, on June 12, Senate Minority Leader Mitch McConnell (R-KY) told the American Enterprise Institute that disclosure requirements would "intimidate donors" and argued that corporations should not face restrictions on their political spending.
Fortunately, not all these challenges have been successful. The Fourth Circuit ruled on June 28 that while Citizens United allows corporations to make independent expenditures to support or oppose candidates for office, corporations cannot make direct contributions to candidates. In doing so, they reversed a federal district judge's finding that corporations have exactly the same political speech rights as individuals.
And Montanans might not be done yet. Ballot Initiative I-166, the “Prohibition On Corporate Contributions and Expenditures in Montana Elections Act,” is expected to be on the ballot in November. If passed, this law would establish that corporations are not people and would call on Montana’s congressional delegation to support a constitutional amendment to overturn Citizens United. This is only one of many similar efforts around the nation.
With the fall 2012 elections looming and estimates that more than $1 billion will be spent by each of the presidential campaigns, the whole country might be about to experience first-hand what Montanans learned a century ago. Unlimited corporate spending in elections does give corporate donors undue influence over the recipients of their funds. This undercuts a basic pillar of our democracy – that elected officials are representatives of the people who vote for them and should respond to their needs, not to the demands of a few wealthy contributors. Perhaps this will spark a movement to support the response of Montanans past and present: to ban all corporate spending in elections once and for all.