Is using corporate money to destroy a political candidate legal? Or is it ‘free speech’ protected by the 1st amendment?
WASHINGTON — The Montana Supreme Court has put itself on a collision course with the U.S. Supreme Court by upholding a century-old state law that bans corporate spending in state and local political campaigns.
The law, which was passed by Montana voters in 1912 to combat Gilded Age corporate control over much of Montana’s government, states that a “corporation may not make … an expenditure in connection with a candidate or a political party that supports or opposes a candidate or a political party.” In 2010, the U.S. Supreme Court, in its landmark Citizens United v. Federal Election Commissiondecision, struck down a similar federal statute, holding that independent electoral spending by corporations “do not give rise to corruption or the appearance of corruption” that such laws were enacted to combat.
That reasoning — described by the Citizens United dissenters as a “crabbed view of corruption” — compelled 23 of the 24 states with independent spending bans to stop enforcing their restrictions, according to Edwin Bender, executive director of the Helena, Mont.-based National Institute on Money in State Politics. Montana, however, stood by its 1912 law, which led several corporations to challenge it as unconstitutional.
By a 5-2 vote this past Friday, the Montana Supreme Court declined to recognize the common understanding that Citizens United bars all laws limiting independent electoral spending. Instead, Chief Justice Mike McGrath, writing on behalf of the majority, called on the history surrounding the state law to show that corporate money, even if not directly contributed to a campaign, can give rise to corruption.
McGrath’s opinion in Western Tradition Partnership v. Attorney General harkens back to the turn of the 20th century, when Montana’s “Copper Kings” — the natural resource-rich state’s version of the robber barons — competed “for political and economic domination” so effectively that by the time the Montana voters banned corporate spending in a voter initiative, “the State of Montana and its government were operating under a mere shell of legal authority.” One such Copper King, wrote Mark Twain in a quotation cited by McGrath, was “said to have bought legislatures and judges as other men buy food and raiment.”
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