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Straight Talk From Straight Shooters in Montana

Liz Kennedy

When the Montana Supreme Court upheld its restrictions on direct corporate political spending, it showed a real-world understanding of politics and people which had somehow eluded the U.S. Supreme Court in 2010’s disastrous Citizens United. The Montana jurists recognized that corruption is real, and that facts are meaningful and necessary. The opinion put the lie to the legal fiction that money spent to elect or defeat a candidate – but not spent through the candidate, and thus referred to as “independent” spending – cannot lead to corruption.

Democratic governance can be corrupted, and fail to be responsive and accountable to voters, in ways far more invidious than the formalistic, unrealistic quid pro quo corruption that monopolized the attention of the five member majority of the Supreme Court responsible for Citizens United and its consequences. Justice Kennedy wrote that “there is only scant evidence that independent expenditures even ingratiate” and that “ingratiation and access, in any event, are not corruption.” However, he continued that “[i]f elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.”

The Montana Supreme Court has recognized that there is plenty of cause for concern.  Even a dissenting Montana judge said “I absolutely do not agree that independent expenditures can’t give rise to corruption. Of course it can.  Citizens United said the only governmental interest in preventing corruption is preventing quid pro quo corruption. This is simply smoke and mirrors. In the real world of politics the quid pro quo of direct contributions to candidates and indirect expenditures on their behalf is loyalty.”

This decision notes that “the factual record before a court is critical to determining the validity of a governmental provision restricting speech.” One result of the Montana court grounding its decision in facts is that when the court looked at the evidence, it found most of the plaintiffs’ claims of injury unsupported.  Though they asserted that their First Amendment rights to political participation were unduly burdened, some of the plaintiffs engaged in robust participation in Montana politics for years. The court also found some of their concerns regarding restrictions on their ability to speak through their corporate persona were not based in the law. The court found that one of the plaintiffs “failed to demonstrate that its speech was impaired by the statute”, and that another‘s speech was “not materially impacted by the statute”. 

This is refreshing when compared to the weightless burdens that the Supreme Court has recently found enough to defeat democratically enacted laws. For example, in Arizona Free Enterprise, plaintiffs failed to demonstrate that they would have spent money, but didn’t because of the ‘burden’ of a threatened response. Additionally, data from political scientists in that case showed an absence of a restrictive effect on speech.  Nevertheless, the Court found essentially that the mere assertion that speech might be burdened was a specter sufficient to overthrow campaign finance provisions adopted by the voters of Arizona. Justice Roberts wrote that “[a]s in Davis, we do not need empirical evidence to determine that the law at issue is burdensome.” But wholly speculative First Amendment claims ought not to succeed in defeating democratically enacted laws where the law is supported by sufficient state interests, such as fighting corruption and the appearance of corruption.

The people of Montana had plenty of real-world reasons to adopt its anti-corruption law. Montana politics was so corrupt before these reforms that a tycoon was found to have won his United States Senate seat through bribery and was unseated. The United States Senate “’expressed horror at the amount of money which had been poured into politics in Montana elections . . . and expressed its concern with respect to the general aura of corruption in Montana.’”

It is easy to roll one’s eyes at the idea that the Senate would be appalled at the amount of money involved in a political race. It’s reminiscent of the scene in Casablanca where Lieutenant Renault announces “I’m shocked! Shocked to find that gambling is going on in here!” before collecting his gambling winnings. 

But cynicism has no place in defending valuable, necessary, normatively correct democratic principles – in fact it is dangerous. The Montana court quotes Mark Twain on the unseated Senator, and Montana corruption generally, that he “is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.” When we wink at corruption, or roll our eyes because it has ever been thus, we run the risk of acclimatizing ourselves to the smell emanating from darker political back-rooms, and to losing control of our democracy to those exercising power from behind closed doors. 

The decision from Montana discusses cynicism among voters over a century apart.  The business tycoon who was unseated by the U.S. Senate for having won his seat through bribery testified in 1900 that “’[m]any people have become so indifferent to voting’ in Montana as a result of the ‘large sums of money that have been expended in the state. . . .’” Similarly, a candidate from this century noted that he encountered voters concerned that “’they didn’t really count’ in the political process unless they can make a material financial contribution, and that special interests therefore hold sway.” 

Cynicism can lead voters to drop-out of the democratic process, leaving the field further open for corporate interests to dominate.  It is that much easier for political favoritism to be exercised on behalf of moneyed supporters in the absence of countervailing pressure from the citizenry.  Voters must remain vigilant in holding elected officials accountable for their choices and positions.  In fact, the Montana court found that encouraging the full participation of the Montana electorate justified upholding the law.

Rejecting cynicism is a first step to fighting for our rights and for what’s right.  We can develop a system of rules for money in politics that are rational, that balance competing interests, and that protect democratic engagement and accountability. Principled jurisprudence that recognizes how politics works in the real world is a necessary and important foundation.