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Can Montana Brief End Citizens United?

Groups like ATP, seeking to deregulate elections entirely, would turn the clock back more than 100 years to a time when elections — and government — were for sale to the highest bidder. The court got it wrong in Citizens United. Let’s hope they get it right this time.

  • Adam Skaggs
Published: May 18, 2012

Published in Politico.

Montana’s attorney general is due to file a brief Friday in the U.S. Supreme Court, asking it to uphold the state’s Corrupt Practices Act. This 1906 law prohibits corporations from making expenditures on behalf of candidates in Montana elections.

The Supreme Court’s response could have repercussions far beyond Montana — the case may well determine how much states can regulate money in politics after Citizens United. The state high court cited Montana’s long history of corruption, when corporations often spent unlimited sums to steal elections, as the reason to narrow Citizens United and uphold the law.

The Supreme Court should heed the Montana attorney general’s argument. More important, this case could offer the high court a viable means to revisit its Citizens United decision. This 2010 ruling, extended by lower federal courts, has spawned the super PACs now threatening to bring Wild West corruption to federal elections.

Months away from November, numerous corporations have each donated more than $1 million to super PACs dedicated to electing specific candidates. They’re not doing it for altruistic reasons. Super PACs that receive — and spend — unlimited donations from parties seeking specific government actions threaten to bring about a new Gilded Age.

Casino magnate Sheldon Adelson, for example, pledged to spend up to $100 million to determine who controls federal agencies now pursuing three investigations against his company. Harold Simmons, who stands to reap extraordinary profits if nuclear waste rules are relaxed, has given super PACs $16 million — including at least $700,000 to the super PAC functioning as an arm of Mitt Romney’s campaign.

Those now challenging the Montana law say it cannot be reconciled with Citizens United. They’ve asked the court to take the extraordinary step of throwing out the Montana law without even allowing briefing and oral argument.

The court should reject this request. Montana’s history demonstrates the corruption that blooms when corporations can spend without limit to capture government. The state’s history demonstrates again and again why the anti-corruption law should stand.

Indeed, a close review of the case shows that the court would be well-served to revisit — and substantially narrow — Citizens United.

Montana voters adopted the Corrupt Practices Act at a time when national copper mining companies were running roughshod over the state government. “Bribery of public officials,” the Montana Supreme Court explained in its ruling, “and unlimited campaign spending by the mining interests were commonplace and well-known to the public.”

The most egregious corruption involved the Anaconda Co., a firm controlled by the powerful Standard Oil. In a struggle over mineral rights, Anaconda locked horns with an entrepreneur, F. Augustus Heinze, who had already bought and paid for the state judges in Butte. They invariably decided cases in his favor.

So Anaconda decided to put the squeeze on the remaining branches of government. The company shut down all its state operations — which put 80 percent of the Montana workforce out of a job. Then, it declared it wouldn’t start hiring until a law was passed, allowing it to avoid litigating in the Butte courts.

The governor and legislators had no choice but to capitulate to Anaconda’s extortion. Only then did the company reopen its mines.

In addition to running the state government, Anaconda also controlled 90 percent of Montana’s press. It ran the entire state like a company town — extracting value for out-of-state shareholders and ignoring the interests of Montana citizens.

Not surprisingly, voters lost faith in their government. W.A. Clark testified to the Senate in 1900 that many Montanans had “become so indifferent to voting” because of the “large sums of money that have been expended in the state.” (Clark, incidentally, is part of the Montana corruption saga. He spent roughly $400,000 bribing the state Legislature to appoint him to the U.S. Senate. The Senate eventually kicked him out.)

The citizens of Montana courageously fought back against this system of malfeasance and mendacity — eventually banning corporate spending in elections.

American Tradition Partnership, the group now leading the litigation challenge to the anti-corruption law, would make Anaconda proud. The organization is incorporated in Colorado — but it has no profit-making goals. Instead, as it conceded in the lower courts, its purpose is “to solicit and anonymously spend the funds of other corporations, individuals and entities to influence the outcome of Montana elections.”

ATP isn’t subtle. It told potential donors in promotional materials that, though Montana limits the amount that can be given to candidates, “There’s no limit to how much you can give [ATP].”

ATP also bragged that it wouldn’t disclose donors’ identities, so “no bureaucrat and no radical environmentalist will ever know you helped make this program possible.”

At the same time it’s suing so that corporations can spend directly in Montana elections, ATP is also pursuing parallel lawsuits to overturn contribution limits and disclosure requirements in Montana.

The facts of this Montana case — and the massive amount of money already spent in the 2012 presidential campaign — prove why we need contribution limits and restrictions on corporate spending in elections.

Groups like ATP, seeking to deregulate elections entirely, would turn the clock back more than 100 years to a time when elections — and government — were for sale to the highest bidder. The court got it wrong in Citizens United. Let’s hope they get it right this time.