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I'm going to talk about something I care a lot about.  Bear with me.

In February, the Supreme Court of the United States blocked a ruling of the Montana Supreme Court.  The case concerned a state law called the Corrupt Practices Act of 1912 that forbade corporate spending on Montana elections.  An organization named Western Tradition Partnership had brought the case to argue that the 2010 Citizens United v. Federal Election Commission Supreme Court ruling had invalidated the ban on corporate spending.  A lower state court judge had agreed, but the Montana Supreme Court was defiant.

In a 5-2 decision, they literally argued that their state's history and demographics were so distinct that they should be exempted from the Citizens United ruling.  It was a bold move that earned them admiration but ultimate condemnation from the folks over at Think Progress.

It is wrong when Newt Gingrich plots a campaign of massive resistance against judges he disagrees with, and Montana’s justices act no less illegitimately when they fail to follow a binding Supreme Court precedent. There is no reason to doubt that every word of the Montana Supreme Court’s decision — which explains in great detail how corporate money corrupts a state’s politics — is accurate, except for the part when they say that Citizens United does not force them to allow corporations to corrupt Montana.

Though the Montana Supreme Court was on shaky ground, even one of the two dissenters blasted the Citizens United ruling.  

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.

Montana likes its anti-corruption law and wants to keep it.  As their Attorney General Steve Bullock told NPR, the state passed the law in 1912 for a reason:

"Our legislature, our judges, down to the local county assessors, were almost bought and paid for. Mark Twain even said that, you know, the amount of money coming in in Montana makes the smell of corruption almost sweet."

It's hard to wrap my head around the fact that Montana's top cop is named Bullock.  That's because the sheriff on HBO's Deadwood was from Montana and also named Bullock.  And the America portrayed in Deadwood is about exactly what Montana was dealing with when they created the Corrupt Practices Act of 1912.  Hell, even some of the characters are the same (e.g., George Hearst).  But to understand that, you have to know about the Anaconda Copper Mining Company.  People found gold in the Black Hills of South Dakota.  In Montana, they found copper:

Anaconda Copper Mining Company started in 1881 when Marcus Daly bought a small silver mine called Anaconda near Butte, Montana. (Anaconda would eventually own all the mines on Butte Hill.) He asked George Hearst (father of publishing magnate William Randolph Hearst) for additional support, who agreed to buy one-fourth of the new company's stock without visiting the site. Huge deposits of another mineral, copper, were discovered soon and Daly became a copper magnate. Daly quietly bought up neighboring mines forming a mining company. He then built a smelter at Anaconda which he connected to Butte by a railway.

Butte, a small and poor town, became one of the most prosperous cities in the country, often called "the Richest Hill on Earth." From 1892 through 1903, the Anaconda mine was the largest copper-producing mine in the world. It produced more than $300 billion worth of metal in its lifetime.

Nothing quite like discovering a mountain full of copper at the exact moment that the country was building its electric system.  It gave rise to the Copper Kings, a rivalry among three fabulously wealthy men and their organizations.

The Copper Kings, industrialists William Andrews Clark, Marcus Daly, and F. Augustus Heinze, were collectively known for the epic battles they fought in Butte, Montana and the surrounding region during the Gilded Age over the control of the local copper mining industry, a fight which had ramifications for not only Montana, but the United States as a whole.

The battles between Clark, Daly and Heinze, and later between just Heinze and industrialist financiers William Rockefeller and Henry H. Rogers are a large chapter in Montana history. Eventually, a company known as Anaconda Copper emerged as a monopoly, expanding into the fourth largest company in the world by the late 1920s.

These three industrialists duked it out in legendary "Old West" style.  Anyone who watched Deadwood will recognize the following description:

Those who controlled the copper mines stood to make millions of dollars, the prize sought by the three men who fought for Butte's mineral wealth with greed and generosity, cruelty and compassion, cowardice and courage. They used their fabulous wealth to buy courts, newspapers, politicians, banks, police, and anything and anyone that could help them or hinder their opponents. To get what they wanted, their money flowed like snowmelt throughout the mile-high city and eventually reached the nation’s capital. All the while the miners toiled thousands of feet below ground in tunnels dug with blasting powder, picks, and shovels. And sometimes, backed by rival copper kings, they also battled, with fists and dynamite, either on the streets of Butte or far below the surface.

It wasn't long before Butte began to pay a price for the riches. The air filled with toxic sulfurous smoke.

Flash forward seventy years and Anaconda Mining had created the largest SUPERFUND site in the country.

The area of Butte, Montana, Anaconda, Montana, and the Clark Fork River were highly contaminated. Milling and smelting produced wastes with high concentrations of arsenic, as well as copper, cadmium, lead, zinc, and other heavy metals. That’s why, beginning in 1980s, the Environmental Protection Agency designated the Upper Clark Fork river basin and many associated areas as Superfund sites - the nation's largest.

So, that's a bit of Montana's history.  Even with their anti-corruption law, their politics have been dominated by mining interests.  You can read more about the period leading up the passage of the Corrupt Practices Act of 1912 here, and I encourage you to do so.

Now, the U.S. Supreme Court has ordered a stay of the ruling of Montana's Supreme Court, but may hear the case sometime soon.  Montana Attorney General Steve Bullock is preparing an amicus curiae brief for that case.  

An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss. The person is usually, but not necessarily, an attorney, and is usually not paid for her or his expertise. An amicus curiae must not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes her or his views valuable to the court.

And the goal is to get the other nineteen Democratic state attorneys general to join Bullock in his submission to the Court.  

When the Court issued its stay, it came with the following interesting comment attached:

Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay. Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. _ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at _ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.

So, at a minimum, Justices Ginsburg and Breyer want to have a new scrap about Citizens United, and they want to use the Montana case to do it.  What I want to do is encourage all 20 Democratic Attorneys General to join that fight and provide some ammunition.  So, in the next few days I am going to provide you with some information you can use to lend your hand to this effort.

Because, while I like the show, I don't want to live in Deadwood.  

[In the interests of full disclosure, I am consulting with Democracy for America on issues that may be mentioned on this blog. While I will continue to express my own views and opinions, any articles that may present a conflict of interest will contain this disclosure.]

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Comment Preferences

  •  Wow, thanks for the history lesson!.... (13+ / 0-)

    can't wait to read more!

  •  As always BooMan23 a (10+ / 0-)

    well written and thought out post.  Thank you.

    Fascism will come to the United States wrapped in a flag and carrying a cross. --Sinclair Lewis

    by maggiejean on Thu Mar 29, 2012 at 11:45:15 AM PDT

  •  One central question, it seems to me is (7+ / 0-)

    how corruption on the part of a public official is defined. If a public official is hired and paid to promote the public interest, then it would seem that accommodating special interests would, by definition be corrupt, whether he gets paid extra, or not.

    HOWEVER, if serving the public interest is defined as doling out our natural resources to whoever is most capable of exploiting them for profit and there's no expectation that the public, regardless of marginal benefit, won't be stuck with the resulting resource depletion, waste and contamination, then letting some people get fat off the land is par for the course.

    To a certain extent, our modern day private corporations are merely aiming to restore the favored status which made their antecedents rich. They resent that the public wants to have a say in how our natural resources are used and want to bring rabid exploitation to an end.  The idea that corporate enterprise should have to clean up after itself is anathema to people who organized themselves into artificial bodies for the expressed purpose of avoiding such onerous obligations. There won't be any free enterprise, if the resources have to be paid for, the health of labor protected and the environment restored.  If, in addition, private corporations are going to be as restricted, or more, as public corporations, which are subject to citizen review of all they do, then the whole advantage of being an artificial body will be gone.

    Nevertheless, what I would argue is that the states, which authorize corporate charters and allow them to organize, are the proper entities to define how these artificial bodies operate and are run. And, while the behavior of the natural person is presumably good because, if it's not, the amount of mayhem one person can perpetrate is rather limited and fairly easy to stop, the behavior of artificial bodies made up of many irresponsible men needs to be limited and restricted -- i.e. not given human rights -- to minimize the potential for damage.  The greater the potential damage, the tighter the restrictions.  Which, for example, would mean that, while individuals fibbing can be tolerated, corporate lying (fraud) needs to be a crime.  And the punishment for corporate crime or the failure to carry out the obligations outlined in their charters should be dissolution and the distribution of assets to the owners.

    People to Wall Street: "LET OUR MONEY GO"

    by hannah on Thu Mar 29, 2012 at 12:06:18 PM PDT

  •  It was a long and arduous process (10+ / 0-)

    to get Montana's government out from under the thumb of the mining industry, to the extent that we needed to craft an entirely new Constitution in 1972 in order to clean out the Augean stables. One miserable Supreme Court decision essentially undid that entire process.

    I love Montana, it's a beautiful place. But back in the 60s, it was an environmental shithole. The rivers were toxic, and the air where I live was unbreathable. Unless CU gets reversed, or worked around somehow, we're going to return to that.

    We already have death panels. They're called insurance companies.

    by aztecraingod on Thu Mar 29, 2012 at 12:28:33 PM PDT

  •  This part is kind of meaningless. (3+ / 0-)
    Recommended by:
    RubDMC, Lujane, VClib
    So, at a minimum, Justices Ginsburg and Breyer want to have a new scrap about Citizens United, and they want to use the Montana case to do it.
    Justices Ginsburg and Breyer were dissenters the first time around.  The fact that they want to "revisit" the decision means nothing. It's just their way of saying, "I thought it was wrong the first time, and I still do."  The only thing that matters is if one of the five in the majority gives any indication of a change in position.  That hasn't happened, and nothing in the cert. grant or the stay indicates that it is likely to happen.  Until it does, I do not see any indication whatsoever that anything will happen other than the SCOTUS will slap down the Montana Supreme Court for defying the SCOTUS ruling.  Even Justice Ginsburg recognizes that the Montana Supreme Court was bound to follow the SCOTUS CU holding unless an until it was reversed:  
    Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.
    This tells you that, if one of the five in the majority doesn't change his mind, even Justice Ginsburg recognizes that the Montana Supreme Court decision has to be reversed.  All the justices take very seriously the notion that a holding of the SCOTUS must be the law of the land (unless and until it is reversed) EVEN IF that justice was a dissenter in that holding.  Even when a justice disagrees with the outcome of a case, they are adamant that the majority's holding must be followed.  

    As Justice Brennan used to tell people all the time, the only number that matters at the SCOTUS is five.  

    •  It's not meaningless (5+ / 0-)

      "The votes of four Justices at Conference (see Rule of four) will suffice to grant certiorari and place the case on the court's calendar."

      It means that the case will probably be heard.  Whether we can change a Justice's mind or not, the idea is to try.

      •  All five in the majority voted (2+ / 0-)
        Recommended by:
        Lujane, VClib

        to grant cert, because the Montana decision was contrary to CU.  They had to grant cert to strike it down.

        See my comment below.  What you are likely to get is a decision from those five reaffirming CU.  So now you've got TWO decisions affirming that reasoning.  That makes it that much more difficult to get one of them to change his mind, if he's ever inclined to do so.

        I'm sure that, if there's no indication that one of the five in the majority is rethinking his position, that the four dissenters would rather not have had this come up again and give the five in the majority a chance to write a second decision reaffirming the first.  

    •  Although I agree with your comment (0+ / 0-)

      Your continuous concern in CU, SCOTUS and Defending the Plutocracy diaries is evident.

      "What have you done for me, lately?" ~ Lady Liberty

      by ozsea1 on Thu Mar 29, 2012 at 01:25:14 PM PDT

      [ Parent ]

      •  ozsea - coffeetalk sees these issues (0+ / 0-)

        through the eyes of a lawyer and analyst, not as a progressive advocate. Having people on our site with domain expertise who will look at issues through the prism of objective analysis is very helpful. We have lots of progressive advocates and critics of Citizens United, it's very useful to have a more analytical view of the law and how the SCOTUS may approach the MSC case.

        I personally think that the SCOTUS will overturn the MSC case 9-0. The dissenting opinion in the Montana case has already drafted the SCOTUS ruling.

        "let's talk about that"

        by VClib on Thu Mar 29, 2012 at 10:32:36 PM PDT

        [ Parent ]

    •  Not at all (3+ / 0-)
      Recommended by:
      Old Lefty, RubDMC, Lujane

      Now that justices have seen what a mess the Citizen's United decision has made of our electoral process,  at least one or two may be convinced to change their mind.

      The Montana law is based on some very relevant experience in trying to maintain state government in the face of massive corporate influence.  Reconsidering the CU decision in light of the Montana law just might make a justice change their mind.

      It's worth a try, anyway.

      •  I'm sure that's why the Montana Court (3+ / 0-)
        Recommended by:
        RubDMC, Lujane, VClib
        It's worth a try, anyway.
        did what they did.  They are certainly intelligent enough to know that they were going against binding precedent, as the dissents noted.  

        I just don't think that's the best strategy, frankly.  This kind of thing -- saying, in effect, sure, we read your CU opinion but we don't think we have to follow it -- really gets the justices' "backs up," sometimes even when they didn't join the majority opinion at issue.  For most justices (on both sides) the principle that their interpretation of the United States Constitution is binding on all states is far, far more important than any one decision.  

        If you want them to re-think CU, it's better strategy to be up front about it.  The Montana Supreme Court would have been better off, I think, to do what the one dissent did -- say, we really really hate CU but we recognize we have to follow it. Then you file your cert petition to ask the Justices to re-think CU.  The four dissenters can gauge whether there's some interest and if not, deny cert.  so as to avoid a situation where the five in the majority reaffirm CU, which just strengthens it as precedent.

        When something like this (a state court saying, in effect, "we aren't bound by your interpretation of the First Amendment") goes to the SCOTUS, the five in the majority on CU have to vote to grant cert, because they have to reverse the opinion.  Unless one of them has given an indication that he is rethinking his position, you are likely to get an opinion slapping down Montana AND reaffirming CU -- which makes it TWO cases that have to be overruled if and when that ever happens.

        That's the same mistake opponents of Roe v. Wade made with Justice O'Connor.  They pushed cases to the SCOTUS to try to get them to "rethink" Roe and overrule it, and, while some of those cases limited it a bit, what they got was decisions  written by "swing" Justices like O'Connor saying "I reaffirm the basic holding of Roe" in Planned Parenthood v. Casey, making it far more difficult if she ever did want to change her mind.  

        If what you want to do is have one of the five in the majority re-think CU, this is bad strategy. What is far more likely to happen is that all five will reaffirm CU, making it even less likely that any one of them will change positions later.  

  •  Thanks. (6+ / 0-)

    The People's Power League and Montana's copper collar were perhaps unique, but that era was one of significant anti-plutocracy legislation nationally through TR's leadership.  This bedrock of anti-corruption legislation is now being reached by the plutocratic Court majority. The cert petition in American Tradition Partnership was filed on Monday and gives an outline of the argument to be joined. The amicus brief would hopefully cover the hidden point that election regulation is best left to legislatures and it becomes very unseemly and a violation of the political question doctrine for a Court to decide whether a legislature can regulate against corruption in elections. The Court's sham grounds of "free speech" is offensive to state court judges who refuse to follow as precedent such a poorly adjudicated decision as CU. Madison, who wrote the First Amendment, would be offended to learn that his democracy is being overthrown by, of all things, an unelected Court, with the supine acquiescence of a corrupted Congress. Breyer and Ginsburg bring this national emergency into the daylight, and the case should be used to galvanize the electorate in the national interest to demand Congressional action overturning CU and stripping the Court of pretended jurisidiction to hear such political questions. Decisions that corrupt the Constitution and throw us into a Consitutional crisis, such as Dred Scott are not to be considered as precedent, according to Lincoln. Congress may by statute overturn Buckley and its progeny, but should also invoke the exceptions clause to prevent any further partisan attempts by the Court to corrupt our democracy.

  •  Detailed some additional historical (5+ / 0-)

    conditions that led to Montana's adoption of the Corrupt Practices Act through a referendum in a diary that's probably not worth reading but was interesting for me to research and write.

  •  largest Superfund site in the nation (3+ / 0-)
    Recommended by:
    history first, BooMan23, stef

    that's really saying something.

    exception: analogy subprocess error #09: analogy too deeply nested, analogy will be aborted so please vote for me, because these larger than average pancakes are quite impressive.

    by nota bene on Thu Mar 29, 2012 at 12:44:01 PM PDT

    •  You should see it (4+ / 0-)
      Recommended by:
      BooMan23, ask, xanthippe2, Larsstephens

      When I was a kid we'd go to Butte and stand in the viewing area above the open pit mine, which was said to be a mile wide and a mile deep. When they closed mining operations, they shut off the water pumps. Now the pit is a mile wide, mile deep toxic lake.

      The worst tragey, IMO, was when Anaconda destroyed Columbia Gardens, the park they had donated to "the children of Butte in perpetuity." All gone, swallowed up by the Pit.

      Berkeley Pit

      Columbia Gardens

  •  A Corporation's duty is to its shareholders' (0+ / 0-)

    profit, and so we are told always and often.

    So, when a Corporation gives money to politicians there are only two options:

    a) Those giving the money are simply throwing away the shareholders' money
    b) The money is given with an implied quid pro quo; with the full expectation that the money will be, at the very least, fully repaid through the lawmakers.

    Since the practice of Corporate "gifts" has continued throughout the history of Corporations, it is impossible that b) is not the case.

    So, say money is speech if you will, but admit that it is speech along the lines of "Take this money and in return give me favorable legislation and rulings." That is, speech intending to corrupt.

    I don't see any way around this: either fiduciary responsibilities are being betrayed (in which case, shareholders would have been removing and suing officials for decades); or criminal gain is intended. There are no other options.


    Today, if you exist... that's already suspicious.

    by Jim P on Thu Mar 29, 2012 at 01:31:34 PM PDT

    •  The Supreme Court 5 don't give a fuck (0+ / 0-)

      Some day in the future we might get a Supreme Court that gives a fuck about ethics.

      "Victory means exit strategy, and it's important for the president to explain to us what the exit strategy is." - George W Bush

      by jfern on Thu Mar 29, 2012 at 04:08:30 PM PDT

      [ Parent ]

  •  Thanks. One point of clarification. The Montana (3+ / 0-)
    Recommended by:
    Old Lefty, RubDMC, Gary J

    supreme Court in fact held that Citizens United was applicable. But it then said the Citizens United ruling was not an absolute prohibition of all regulation of corporate contributions. They said Citizens United permitted restrictions on this "speech" if there is a compelling state interest. Here is the relevant part,

    While Citizens United was decided under its facts or lack of facts, it applied the long-standing rule that restrictions upon speech are not per se unlawful, but rather may be upheld if the government demonstrates a sufficiently strong interest. . . . . The Supreme Court in Citizens United applied the highest level of scrutiny to the restrictions at issue there, requiring the government to demonstrate a compelling interest, although the level of evidence needed to satisfy heightened scrutiny will vary with the “novelty and plausibility of the justification raised.”
    While all do not agree that this is a correct reading of CI it is what will be reviewed by the Supreme Court. That leaves a door open for the Court to say that there are circumstances where corporate contributions can be regulated without having to overrule CI, which will not happen this soon.

    Further, affiant sayeth not.

    by Gary Norton on Thu Mar 29, 2012 at 01:33:20 PM PDT

  •  Tycoons, Montana, and Frank Zappa (1+ / 0-)
    Recommended by:
    BooMan23

    Thanks for a great diary.  This has no bearing but I couldn't help but think of Frank Zappa's classic song Montana.  

    I might be movin' to Montana soon...
    Gonna be a Dental Floss tycoon
    1973 LP Over-nite Sensation

    Other lyrics from the song sort of fit the Deadwood scenario.

    As you probably know, Zappa was a major proponent of free speech (for individuals, not corporations), and very politically active.  

  •  80% of Americans oppose (1+ / 0-)
    Recommended by:
    Musial

    Citizens United. The 5 Republican "justices" all voted for it, while the 4 Democrats opposed it. Why aren't Democrats making this corruption a bigger issue?

    "Victory means exit strategy, and it's important for the president to explain to us what the exit strategy is." - George W Bush

    by jfern on Thu Mar 29, 2012 at 04:07:17 PM PDT

  •  This diary was interesting to me on several levels (3+ / 0-)
    Recommended by:
    Larsstephens, Musial, Marie

    I was born, raised and currently live in Butte, Montana. I would like to compliment you on the historical accuracy of the diary. The Anaconda Company did almost completely dominate Montana politics for a substantial period of its history.

    On another level, a friend of mine from law school was the judge at the District Court level who held that the Corrupt Practices Act of 1912 was unconstitutional in view of the Citizens United decision. Holding the law to be unconstitutional was the last thing that he wanted to do but he felt that he had no choice in view of his obligation to follow binding precedent. It was his decision therefore that was appealed to the Montana Supreme Court.

    And then, when the Montana Supreme Court issued its decision, the opinion was authored buy Mike McGrath who was a year ahead of me in high school (Boy's Central, Butte, Montana).

    I completely support what the Montana Supreme Court did here. The Citizens United decision is a disaster that has the capacity to completely eliminate a functioning democracy in this country.It needs to be continually attacked and the reasoning behind it needs  to be forever challenged.

  •  thank you - great history lesson and (0+ / 0-)

    much to think over. Bookmarked and kept for future reminders.

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