In another 5-4 vote Monday, and without bothering to hear arguments in the case, the U.S. Supreme Court blithely tossed out a longstanding Montana law that barred corporations from making campaign contributions in state elections. States’ rights, it seems, must bow to corporate power in the Roberts court.
Or as Montana Attorney General Steve Bullock noted afterward, “It is a sad day for our democracy and for those of us who still want to believe that the United States Supreme Court is anything more than another political body.”
Bullock’s condemnation of the nation’s highest court as just “another political body” may sound harsh to some ears, but it is depressingly accurate. The Montana law had been on the books for 100 years, and for most of those 100 years its constitutionality had not been called into serious question. It was considered well within established law.
The absurd notions that have now forced its demise — corporations are people and speech is money — are novel law that has been imposed upon Montana and the rest of the country by an increasingly activist, inventive and yes, partisan Supreme Court.
Let’s be honest about this: The increasingly partisan nature of the court is not an accident. It did not occur by magic, but by concerted effort. For at least a quarter of a century, the Republican Party has made the creation of such a court one of its primary goals. The same sort of rigid ideological tests that the party has imposed on candidates for elective office have also been imposed on those it supports for nomination to the federal judiciary. Over a generation, that campaign has succeeded in creating a court that is far more friendly to the powerful than to the individual citizen.
The “smoking gun” in that evolution is of course the court’s “Citizens United” decision, in which the conservative majority decided that bans or limits on corporate expenditures are unconstitutional because “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
That finding is ludicrous for a variety of reasons. It contradicts common sense, it contradicts history, it contradicts what we can see taking place in plain sight at this very moment and it contradicts the elected politicians who passed campaign-finance laws in the first place. Unlike the unelected justices, those politicians know the system intimately; they know firsthand what power can be wielded by unlimited money spent anonymously.
The people of Montana know it as well. I would strongly advise those interested in the issue to read last year’s 5-2 decision of the Montana Supreme Court (available here) as it attempted to uphold and defend their state’s law against the conservative judicial majority in Washington. The decision lays out in clear language that state’s difficult history in trying to fend off outside corporate control.
It’s also important to note that neither of the two dissenters on the Montana court embraced the logic of the Citizens’ United decision. Instead, they based their dissent on the fact that Montana had no choice but to bow to the federal court’s greater authority, however irrational it might be.
One of those dissenters, Justice James C. Nelson, used the opportunity to express his clear and eloquent disgust with the decision of his federal counterparts. I cannot recommend it more highly.
Here’s part of what he had to say:
“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.
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 spending capability of corporations to place corporate views before the electorate….
I absolutely do not agree that corporate money in the form of “independent expenditures” expressly advocating the election or 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.
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….
Lastly, I am compelled to say something about corporate “personhood.” While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept 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.”
President Obama, name that man to the U.S. Supreme Court.
– Jay Bookman