The topic of Montana's election financing ruling yesterday has already been diaried - but I spent last night reading the decision and wanted to share some thoughts
Cross-posted to my blog at dailyoligarch.com, Twitter: @dailyoligarch
At stake, Montana's well-titled 'Corrupt Practices Act', enacted in 1912, which specifies:
(1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.
(2) A person, candidate or political committee may not accept or receive a corporate contribution described in subsection (1).
The law was challenged by local teabagger, the appropriately-named Kenneth Champion, who felt his rights were infringed if his Bozeman, MT company, Champion Painting Inc., was unable to buy political advertisements to influence democratic elections. You see, Kenneth has important business interests that require it to advocate publicly for political causes: "Ken Champion and his crew can do it all. Hanging sheetrock, mud and tape, interior and exterior painting." Yes, they 'do it all', including licking the boots of corporate America by using their shitty painting company to do the legal bidding of petro-oligarchs in Helena. Despite the fact that there are no laws regulating his god-given right as an individual teabagger to buy or sell political influence, Champion insisted that this right be extended to his alter-ego, Champion Painting Inc., because:
he believes ads attacking or supporting candidates would have more credibility if sponsored by a small business like Champion Painting.
Champion was joined as plaintiff by gun nuts at the Montana Shooting Sports Foundation, and the Western Tradition Partnership, which bills itself as a "grassroots lobbying organization dedicated to fighting environmental extremism and promoting responsible development and management of land, water, and natural resources." Ah yes, the type of "grassroots" movement that rails against "anti-human, anti-access, environmentalist hysteria" and attacks the "radical environmentalism" of Newt Gingrich. Western Tradition Partnershp has since expanded nationally as the American Tradition Partnership, and created a spin-off propaganda outlet, the American Tradition Institute, famous for harassing university professors to obfuscate climate science. The Institute's largest donor is Doug Lair, who made his fortune by selling his oil company to Bill Koch, the poorest billionaire of the Koch clan.
So as plaintiffs you have big oil front group, local gun nut organization, and dimestore millionaire and useful idiot Kenneth Champion - a veritable microcosm of the Republican coalition - united to tear down landmark Montanan progressive-era legislation. And thanks to Citizens United v. F.E.C. they were able to do just that at the level of the District Court. Recall that in that landmark ruling in favor of the oppressed oligarchic minority, the U.S. Supreme Court concluded:
"independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption"
Ah yes, because how could anyone interpret political expenditures by shadowy big oil front groups as giving rise to corruption?
Well, Montana's Supreme Court wasn't having it. It body-slammed Western Tradition Partnership:
We take note that Western Tradition appears to be engaged in a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements. In addition to this case, it is currently engaged in separate litigation in the same District Court involving the Montana laws on campaign spending disclosures. ... Ironically, perhaps, WTP argued in the District Court and in its oral presentation to this Court on appeal that their compliance with these same disclosure laws that it now seeks to invalidate should remedy any concerns regarding the potential corrupting influence of its unlimited corporate expenditures.
and called it out as a shadowy front group for deep-pocketed donors:
WTP, as noted, has been terse in its explanations of its organization, funding, activities, and intent. It claims to be a foreign corporation but it is not a business corporation. Its purpose, according to un-rebutted evidence submitted to the District 13 Court by the State, is to solicit and anonymously spend the funds of other corporations, individuals and entities to influence the outcome of Montana elections. In a promotional presentation directed to potential donors, WTP represented:
There’s no limit to how much you can give. As you know, Montana
has very strict limits on contributions to candidates, but there is no limit to
how much you can give to this program. You can give whatever you’re
comfortable with and make as big of an impact as you wish.
Finally, we’re not required to report the name or the amount of any
contribution that we receive. So, if you decide to support this program, no
politician, no bureaucrat, and no radical environmentalist will ever know
you helped make this program possible. The only thing we plan on
reporting is our success to contributors like you who can see the benefits of
a program like this. You can just sit back on election night and see what a
difference you’ve made.
summarizing tersely:
Organizations like WTP that act as conduits for anonymous spending by others
represent a threat to the “political marketplace.
For their part, the court was unmoved by the egregious injustic done to the gun nuts and Mr. Champion, sheetrock entrepreneur and useful idiot:
First, the depositions of Marbut (on behalf of MSSF) and Champion demonstrate that both have been very active politically in Montana on a range of issues that concern them. Neither could demonstrate any material way in which Montana law hindered or censored their political activity or speech.
...
Similarly, Mr. Champion described his many political activities both on a local and state level. He affirmed that he regularly speaks, blogs, and meets with others, and has run for public office. His complaint was that he believed that Montana law prohibits him from telling his audiences and readers that his company, Champion Painting, also supports his views. Mr. Champion believes that a candidate endorsement by “Champion Painting, Inc.” would be more persuasive than his personal endorsement, and that if his business spends money on political events he will enjoy “tax benefits.” However, in Champion’s case he is the sole shareholder and derives his livelihood from the money he pays himself from the corporation. While the statute forbids the expenditure of Champion Painting’s corporate funds to support or oppose candidates, the burden upon Kenneth Champion, as a sole shareholder, to establish a political committee to advocate for his corporation’s interests and expend funds that he will decide to contribute, are particularly minimal. We conclude, under these facts, Champion’s political speech was similarly not materially impacted by the statute
It corrected the lower court with a narrow interpretation of Citizens United, and noted that the government could ban corporate 'speech' if there was a sufficiently strong interest:
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.
...
Therefore, the factual record before a court is critical to determining the validity of a governmental provision restricting speech.
It then put the 1912 law in its gilded age context by referencing the class war against the Koch-style robber barons of an earlier era:
Third, the Montana law at issue in this case cannot be understood outside the context of the time and place it was enacted, during the early twentieth century. (Montana became a state in 1889.) Those tumultuous years were marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.
...
Examples of well-financed corruption abound. In the fight over mineral rights between entrepreneur F. Augustus Heinze and the Anaconda Company, then controlled by Standard Oil, Heinze managed to control the two State judges in Butte, who routinely decided cases in his favor... the Butte judges denied being bribed, but one of them admitted that Anaconda representatives had offered him $250,000 cash to sign an affidavit that Heinze had bribed him. ... In response to the legal conflicts with Heinze, in 1903 Anaconda/Standard closed down all its industrial and mining operations (but not the many newspapers it controlled), throwing 4/5 of the labor force of Montana out of work
...
After the Anaconda Company cleared itself of opposition from Heinze and others, it controlled 90% of the press in the state and a majority of the legislature
...
Even at that time it was evident that industrial corporations controlled the state “thus converting the state 17 government into a political instrument for the furthering and accomplishment of legislation and the execution of laws favorable to the absentee stockholders of the large corporations and inimical to the economic interests of the wage earning and farming classes who constitute by far the larger percentage of the population in Montana.”
Since history books written by the likes of Glenn Beck and Bill O'Reilly omit everything between 1865 (when a Republican saved the country) and 1933 (when a Democrat destroyed it), the history lesson continued for the sake of the illiterate teabaggers:
W. A. Clark, who had amassed a fortune from the industrial operations in Butte, set his sights on the United States Senate. In 1899, in the wake of a large number of suddenly affluent members, the Montana Legislature elected Clark to the U. S. Senate. Clark admitted to spending $272,000 in the effort and the estimated expense was over 16 $400,000. Complaints of Clark’s bribery of the Montana Legislature led to an investigation by the U. S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him
...
In a demonstration of extraordinary boldness, Clark returned to Montana, caused the Governor to leave the state on a ruse and, with assistance of the supportive Lt. Governor, won appointment to the very U. S. Senate seat that had just been denied him.
The court was too kind. Here is what Mark Twain said of William A. Clark, great Senator of Big Sky:
"He is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed's time."
Senator Clark died in a Fifth Avenue mansion with a net worth of $150 million. His art collection was donated to the Corcoran Gallery, where it now gives DC liberals the pretense of culture as a brief escape to the daily drudgery of licking the boots of today's Clarks and Pierpont Morgans.
Quoting Harry Fritz, History Professor at UM-Missoula, the court then connected gilded ages past and present:
“What was true a century ago is as true today: distant corporate interests mean that corporate dominated campaigns will only work ‘in the essential interest of outsiders with local interests a very secondary consideration.’” While specific corporate interests come and go in Montana, they are always present
The court then asks:
The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because the shadowy backers of WTP seek to promote their interests?
whichs allows a clear conclusion against the big oil shills and teabagger plaintiffs:
Citizens United does not compel a conclusion that Montana’s law prohibiting independent political expenditures by a corporation related to a candidate is unconstitutional. Rather, applying the principles enunciated in Citizens United, it is clear that Montana has a compelling interest to impose the challenged rationally-tailored statutory restrictions. We reverse the District Court and enter summary judgment in favor of the Montana Attorney General
The court ruling was 5-2. For today, big oil front group 'American Tradition Partnership' has retreated to its cave to plan its next move - presumably to the Supreme Court, where they will find a friendlier audience. As for Kenneth Champion, his heroic dreams for the cause of liberty shattered, he will sulk back to his local Bozeman, MT tea party chapter to forever spend his days complaining about 'activist judges' to anyone who will listen.
Cross-posted to my blog at dailyoligarch.com, Twitter: @dailyoligarch