On December 30, 2011, by a vote of 5 to 2 the Montana Supreme Court decided that Montana’s ban on corporate political expenditures dating back to 1912 could stand. In a hard hitting decision, the U.S. Supreme Court’s take on the role of corporate money in politics in 2010’s Citizens United was challenged by both the majority and a dissent. The Montana Court slammed Citizens United from both barrels.
Barrel number one is the majority opinion, which relies on the particular history of Montana to uphold the constitutionality of the Corrupt Practices Act, a voter initiative, which was adopted on the heels of rampant corporate corruption at the behest of out of state mining interests. As the majority wrote: “the Montana law at issue in this case cannot be understood outside the context of the time and place it was enacted, during the early twentieth century.”
Montana’s “Copper Kings” as they were known bought judges, influenced the legislature and nearly monopolized the state’s mass media of the day — its newspapers. The corruption had federal aspects as well as. One U.S. senator from Montana, W. A. Clark, was expelled because the Senate concluded he had won his seat through bribery. The people of Montana chose to protect their democracy from this type of mischief by outlawing corporate spending in Montana’s elections.
The Montana Supreme Court held that Citizens United did not rule that expenditure bans were per se invalid. Rather, the Court noted that an expenditure ban is subject to strict scrutiny, which requires the state to show a compelling reason justifying the ban. The majority found the people’s interest in electoral integrity and voter engagement compelling and that the law was narrowly tailored to serve these interests.
Montana has some of the lowest cost elections in the nation. This is driven in part because it is one of the least populous states (therefore candidates have fewer constituents to reach), and in part because it has $130 contribution limits. This democratizes who can afford to donate in Montana’s campaigns. This is apparent when compared to a state like New York where candidates for governor can get over $55,000 from a single contributor, more than the average New Yorker makes in a year. As the Court noted, in the context of Montana’s low cost elections, unlimited corporate spending could have a particularly pronounced impact — discouraging every day citizens from participating in the political process.
Another reason the Court upheld the ban was to protect Montana’s elected judiciary. As the nonprofit group Justice at Stake has noted for years, the cost of judicial election around the country have been spiraling upwards. The Court concluded Montana “has a compelling interest in precluding corporate expenditures on judicial elections based upon its interest in insuring judicial impartiality and integrity, its interest in preserving public confidence in the judiciary and its interest in protecting the due process rights of litigants.” The Court was particularly worried that, “an entity like Massey Coal, willing to spend even hundreds of thousands of dollars, much less millions, on a Montana judicial election could effectively drown out all other voices.”