A Nelson hold is a wrestling move used to pin an opponent. The Montana Supreme Court recently upheld its century old restrictions on corporate political spending, finding that the State had a compelling interest in protecting its state government from corruption, encouraging the full participation of the electorate, and defending the integrity of its judiciary.
Judge Justice Nelson felt compelled to dissent, and penned a scathing critique of Citizens United. He nails the Court’s logical fallacies and myopic myths to the mat, and argues compellingly that the Court got it very wrong. Here are some of the highlights from Judge Nelson’s dissent:
1. On the myth that independent expenditures cannot corrupt
I absolutely do not agree that corporate money in the form of ‘independent expenditures’ expressly advocating the election of defeat of candidates cannot give rise to corruption or the appearance of corruption. Of course it can. Even the most cursory review of decades of partisan campaigns and elections, whether state or federal, demonstrates this. Citizens United held that the only sufficiently important governmental interest in preventing corruption or the appearance of corruption is one that is limited to quid pro quo corruption. This is simply smoke and mirrors. In the real world of politics, the ‘quid pro quo´ of both direct contributions to candidates and independent expenditures on their behalf is loyalty. And, in practical effect, experience teaches that money corrupts, and enough of it corrupts absolutely.
2. Regarding corporate spending swamping citizen voices
It defies reality to suggest that millions of dollars in slick television and Internet ads – put out by entities whose purpose and expertise . . . 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 spending capability 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.
3. On the idea that corporate speech improves democracy
I disagree with the premise that unlimited corporate political speech is essential to ‘enlightened self-government’ and aids the electorate in making ‘informed choices’. I agree that ‘rhetoric ought not obscure reality’. But I cannot agree that the Citizens United majority’s views reflect ‘reality’. For one thing, voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half-truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse, and disenchant voters.
4. On the idea that the State can’t fight electoral corruption
I cannot agree with the holding that the prevention of corruption in the form of independent expenditures is not a compelling state interest. There is no plausible reason why a state would not want to protect the integrity of its election process against corruption and undue influence; to do otherwise would render the fundamental right to vote a meaningless exercise. To my knowledge, the First Amendment has never been interpreted to be absolute and gloriously isolated from other fundamental rights and values protected by the Constitution. Yet, Citizens United distorts the right to speech beyond recognition. Indeed, I am shocked that the Supreme Court did not balance the right to speech with the government’s compelling interest in preserving the fundamental right to vote in elections.
5. Regarding corporate personhood
I find the concept [of corporate personhood] entirely offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.
6. Regarding the continuing fight against political corruption
Each state has its own corruption horror stories and has battled political and election corruption at one time or another. Even a casual examination of the daily newspaper or the evening news proves that battling political corruption is ongoing. . . . It should be noted that Montana’s Corrupt Practices Act was adopted in 1912 at a time when the country’s focus was on preventing political corruption, not on protecting corporate influence. Due to intervening changes in the composition and philosophy of the Supreme Court, that focus has now flip-flopped.
7. Regarding corporations being disadvantaged
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.
8. On the idea that money equals speech
Citizens United has turned the First Amendment’s ‘open marketplace’ of ideas into an auction house for [unrestrained free-market economic] 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.
9. On the idea that corporations should be able to influence elections
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.
10. Regarding the protection of shareholder rights
I do not believe that participation in ‘corporate democracy’ actually accounts for anything – unless, of course, the objecting shareholder is an insider or owns a controlling percentage of the outstanding stock. I cannot agree that ‘corporate democracy’ will cause big business and multinational corporations to exercise responsibly their new unlimited power to speak and spend. It won’t, because money, influence, and access are at stake. Any notion to the contrary is simply the triumph of hope over experience.