A Montana case has given the U.S. Supreme Court an opportunity to reconsider its decision in Citizens United, the odious 2010 ruling that opened the gates to unlimited, undisclosed campaign spending. Reversal is highly unlikely, but the justices could give the states some leeway in their regulation of corporate and individual giving.
If any state can make the case, Montana can.
Montana’s residents bypassed the legislature to enact the Corrupt Practices Act in 1912. Their aim was to break the power of the “Copper Kings” and the mining companies they left behind. With the fantastic wealth generated by the mines in Butte, the industry bought everything and everybody necessary to have its way. Most infamously, mine owner William Clark bribed legislators to win himself a seat in the U.S. Senate.
As late as the mid-1950s, the Anaconda Co. owned four of the five largest newspapers in the state. The grip the company held on Montana was as clear as its big sky.
The assertion in the Citizens United ruling that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” defies all experience in a state that was, in effect, a company town for decades. Given that history, the Montana Supreme Court rejected a challenge to the state law brought by two small Montana companies and an outside political action committee.
Three U.S. Supreme Court justices stayed the state court’s ruling in February, but noted the “huge sums of money currently deployed to buy candidates’ allegiance.”
The plaintiffs have since asked the federal high court to overrule the state court and nullify much of the Corrupt Practices law, which was amended in 1979 to permit businesses to make disclosed campaign contributions. The full court could deny that petition and allow the Montana law to stand; accept the petition and override the Montana court, which would overturn the state law; or accept the petition, allow both sides to submit legal briefs, and set aside time for oral arguments.
In a brief filed Monday, Montana Attorney General Steve Bullock argues that compliance with the Corrupt Practices Act imposed little burden on companies, which just fill out a two-page disclosure form. In fact, he says, the Montana Supreme Court followed Citizens United in its ruling.
Bullock wants the U.S. Supreme Court to grant a full hearing for the Montana case. The attorneys general from 22 other states – Washington and Idaho among them – also filed a brief asking the court to recognize the potential harm big money from national PACs could have on state and local elections.
All that is really needed is full, timely disclosure. And if there is real justice in this case, the words of the corporate plaintiffs will hang them. In a solicitation to donors, American Tradition Partnership flaunted its intentions:
“You can give whatever you’re comfortable with. … The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this. You can just sit back on election night and see what a difference you’ve made.”
Now, that’s disclosure. William Clark could have said as much.