Western Populism and Corporate Electioneering: The Montana Supreme Court

One of the historical oddities about today’s debates over corporate money and elections is that the issue maps so directly onto partisan political differences, at least among national political players.  As I’ve noted before, the deeper, long-term pattern historically has been quite different.  Starting at least in the Jacksonian era, with Andrew Jackson’s war on the Bank of the United States — in significant part, because of allegations that the Bank was playing a role in partisan political contests — there have been longstanding alliances against corporate money in politics that united more conservative populists in the west and midwest with more liberal progressives in the east and that transcended conventional partisan divisions.

Arizona’s John McCain, of course, was a principal architect of the restrictions on corporate electioneering the Supreme Court struck down in Citizens United.  And within the US Supreme Court, manifestations of that deep historical pattern can be seen in the fact that several Justices from the western United States who otherwise were considered conservatives or moderates strongly endorsed the power of government to limit the role of corporate money in elections — Justice O’Connor (from Arizona), Justice White (from Colorado), and Justice Rehnquist, until he changed his view at the end of his tenure (sixteen years in private practice in Arizona). But there is no one on the Court now who appears to reflect that western-style populist resistance to corporate electioneering.

It’s against this backdrop that the recent decision of the Montana Supreme Court, which upheld that state’s ban on corporate electioneering despite Citizens United, ought to be seen.  What’s particularly striking about the 5-2 decision is that even the dissenting judges, who believed Citizens United required them to hold Montana’s law unconstitutional, nonetheless railed against the U.S. Supreme Court’s decision.  Take a look at a couple of these passages from dissenting Justice James Nelson:

I am deeply frustrated, as are many Americans, with the reach of Citizens United. The First Amendment has now been elevated to a vaunted and isolated position so as to endow corporations with extravagant rights of political speech and, with those rights, the
exaggerated power to influence voters and elections. . . .

Furthermore, it defies reality to suggest that millions of dollars in slick television and Internet ads—put out by entities whose purpose and expertise, in the first place, is to persuade people to buy what’s being sold—carry the same weight as the fliers of citizen candidates and the letters to the editor of John and Mary Public. It is utter nonsense to think that ordinary citizens or candidates can spend enough to place their experience, wisdom, and views before the voters and keep pace with the virtually unlimited spendingcapability of corporations to place corporate views before the electorate. In spending ability, bigger really is better; and with campaign advertising and attack ads, quantity counts. In the end, candidates and the public will become mere bystanders in elections. . . .

While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business. Citizens United, 130 S. Ct. at 949-50 (dissenting opinion).

Whether or not the decision of the Montana Supreme Court holds up legally, the decision is a significant signal regarding the ways in which the issue of corporate electioneering continues to transcend conventional partisan affiliations in much of the country (since 1965, Montana has voted for Republicans for President in every election except 1992) — particularly in the West, even if the issue remains a purely partisan one in Washington, D.C.  Some activists, like Larry Lessig, have sought to bring the Tea Party and the Occupy Wall Street groups together around this issue (see here).  Historical patterns of American political culture, which have bubbled through to the surface in the Montana Supreme Court decision, suggest a basis for believing latent coalitions of these sorts continue to exist.  Whether they can be successfully mobilized, and to what effect, remains to be seen.

UPDATE:  In confirmation of the perspective advanced here, a former public official in MT writes to tell me that the two leading public officials who filed affidavits testifying to the justification for the MT law were Republican and Democratic former members of the state House and Senate and candidates for the Governor’s office.