This editorial will appear in Tuesday’s print edition.
It’s a legal long shot, but Montana’s attorney general is mounting a brave defense against the 2010 U.S. Supreme Court decision that unleashed super PACs on American democracy.
To their credit, 22 other state attorneys general – including Washington’s Rob McKenna – are backing Steve Bullock’s attempt to protect Montana from the Citizens United ruling.
Montana was once a poster boy for money-corrupted politics; its history shows how vulnerable states are to the unlimited corporate spending the Supreme Court allowed when it overturned key federal campaign finance restrictions in 2010.
More than 100 years ago, Montana politicians were bought, sold and openly traded by mine-owners known as the Copper Kings. The bribery and other corruption were more or less inevitable, given the ease with which a handful of plutocrats could have their way with an agrarian state.
Montana lawmakers finally reined in the power of Anaconda Copper and other corporate barons by enacting the Corrupt Practices Act of 1912, which sharply curtailed how much they could spend electing friendly officeholders.
The history behind the Corrupt Practices Act flatly refutes Citizens United. Justice Anthony Kennedy, writing the majority decision in that case, proclaimed that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
Kennedy was arguing from legal abstractions; in the real world, precisely the opposite is true. People who control immense amounts of money, be they corporate or union bosses, will use that money to put compliant allies in office.
Within reasonable bounds, that’s part of the democratic process. But Citizens United dismantled the reasonable bounds on independent expenditures by corporations and unions. The court made it possible for unlimited campaign money to flow – often anonymously – into the coffers of the super PACs that have risen in the wake of the decision.
The ruling would appear to have doomed Montana’s Corrupt Practices Act, which is being challenged in court by a property-rights group. Bullock hopes he can persuade the high court that big money will have an unusually corrupting effect on the state level, and that Citizens United should not be sweepingly construed to nullify state campaign finance laws.
The court majority made its ruling on First Amendment grounds. It doesn’t seem likely to give less of a supposed constitutional right to big spenders just because they’re operating on the state level.
Still, it won’t hurt to give the court a chance to think twice about Citizens United. As Oliver Wendell Holmes once remarked, experience is the life of the law. America already has had plenty of experience – in Montana and every other state – with wealth and politics. That history isn’t irrelevant to the Constitution.