Court vs. Court

I’ve been a lawyer for thirty-two years, and I’ve never read a judicial decision like the one that the Montana Supreme Court issued last December 30.

While every court in this country – from the lowest state court to the federal tribunals – sees its job as obeying the dictates of the United States Supreme Court, the Montana Supreme Court chose to obey the U.S. Constitution instead.

The bottom line: the Montana court refused to comply with the US Supreme Court’s infamous 2010 decision in Citizens United, which struck down legal limits on how much corporations could spend on electing politicians or passing ballot measures. The Supreme Court ruled that corporations have a First Amendment right to intervene and influence our democracy with cash. Spending money is a form of free speech, said five of the nine justices. And by that one vote majority, the United States Supreme Court made corporations more powerful than government, more powerful than human beings. The second anniversary of the Citizens United ruling sparked a day of national protest, as my colleague Marty Berg reports.

Like many states, Montana had strong campaign spending laws, including disclosure of campaign contributors and one that prohibits corporations from giving money directly to candidates for public office out of the company treasury. Instead, corporations that want to get involved in elections are required to set up a special fund that can receive donations from individual corporate employees or shareholders and use that money for gifts to politicians or political causes.

As the Montana opinion explains, a Colorado-based organization known as “Western Tradition Partnership” sued to invalidate Montana’s corporate campaign controls, saying they were unconstitutional under Citizens United. Now known as “American Tradition Partnership,” the organization’s supporters and funding are murky, but it’s views are clear: it is extremely anti-environment. The Montana Supreme Court described its purpose as “to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections. WTP seeks to make unlimited expenditures in Montana elections from these anonymous funding sources. WTP’s operation is premised on the fact, or at least the assumption, that its independent expenditures have a determinative influence on the outcome of elections in Montana.”

Lots of states have dealt with Citizens United by repealing or rewriting their campaign spending laws. Not Montana.

The Montana Supreme Court decision begins by discussing how in the late 1800s, big mining interests used money to back or bribe elected officials in Montana to take control of state government. The corruption got so bad that many citizens of the state lost their faith in government. “This naked corporate manipulation of the very government (Governor and Legislature) of the State ultimately resulted in populist reforms that are still part of Montana law,” writes Montana Chief Justice Mike McGrath. Among the reforms: the initiative process, and, in 1912, the limits on corporate spending.

“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,” the Chief Justice writes. 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? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

While the US Supreme Court justices saw no “compelling interest” in limiting corporate contributions, the Montana Supreme Court had a different view: “Montana has a clear interest in preserving the integrity of its electoral process”;  “it also has an interest in encouraging the full participation of the Montana electorate”; and “a continuing and compelling interest in, and a constitutional right to, an independent, fair and impartial judiciary,” one that is not subject to being bought by corporations who elect friendly judges.

Concluding that “the impact of unlimited corporate donations creates a dominating impact on the political process and inevitably minimizes the impact of individual citizens,” the Montana Supreme Court refused to apply Citizens United and upheld the state’s campaign 100 year old reform law.

But that was only the majority opinion. Wait till you hear what the two dissenting justices had to say:

The first, Justice Beth Baker: “The value of disclosure in preventing corruption cannot be understated.” But, she continues, “I believe it is our unflagging obligation, in keeping with the courts’ duty to safeguard the rule of law, to honor the decisions of our nation’s highest Court.”

Justice James Nelson gets the last word, and it’s a doozy.

He writes:

“I thoroughly disagree with the Supreme Court’s decision in Citizens United…. 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….. 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.”

“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.”

“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.”

“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.”

Having explained, in the most vivid terms, why Citizens United was decided wrongly, Justice Nelson concludes: “I must return to the central point of this Dissent. Regardless of my disagreement with the views of the Citizens United majority, the fact remains that the Supreme Court has spoken. It has interpreted the protections of the First Amendment vis-à-vis corporate political speech. Agree with its decision or not, Montana’s judiciary and elected officers are bound to accept and enforce the Supreme Court’s ruling….Citizens United is the law of the land, and this Court is duty-bound to follow it.”

Students of the law know that courts are always disagreeing with each other. Like the majority of the Montana Supreme Court, judges seek to “distinguish” the circumstances of one case from the facts in another in order to rule a different way. But rarely do the cases involve issues so fundamentally important to the nation; rarely are the stakes so great and rarely are the differences so stark. My guess is we're going to be seeing more of this gentle judicial civil disobedience as the present US Supreme Court ventures ever farther into the realm of re-writing the Constitution.

All the Montana justices seemed to agree that the United States Supreme Court had made a terrible decision in Citizens United. It’s most vehement critic on the Montana court, certain of that as he was, nevertheless felt bound to obey a higher principle – to obey the law of the land. If only the five justices in Washington had felt the same way.

 

 

Citizens United / Harvey Column / Outrage / Supreme Court - 01/23/2012

Fight Back Against Citizens United

On the second anniversary of Citizens United, the U.S. Supreme Court ruling that corporations are people, there’s bad news and good news.

The bad news: we’re seeing the full impact of the ruling, with the creation of PACs --- political action committees -- with innocuous Mom and apple pie-sounding names, like Make Us Great Again and Winning Our Future, funded by unlimited anonymous corporate contributions.

The good news is that the ruling has galvanized a grassroots backlash: if you’re mad as hell and want to join the fight to rid our democracy of toxic big money, there’s an explosion of grassroots opposition for you to plug into today, or whenever you’re ready.

First, a little history. Corporate political contributions have been stirring outrage for more than 100 years, since they helped elect Teddy Roosevelt in 1904. Once elected, the savvy Roosevelt got in front of a movement to outlaw those contributions, resulting in passage of the Tillman Act.

But the corporations didn’t just slink away in defeat; they developed ever more creative ways to skirt the law and influence elections.

In Citizens United, eight Supreme Court justices ruled in 2010 that while corporations couldn’t contribute to individual candidates they could give to political action committees that do not, supposedly, have formal ties to a particular candidate.

In their ruling, the justices took a flawed, too narrow view of the way in which money corrupts politics. First, they said that since the PACs aren’t linked to individual candidates, the contributions couldn’t be used to bribe the candidates, or extract a quid pro quo.

The court ignored the well-known fact that the monster PACs do establish informal but strong ties to individual candidates.

In addition, the court misstates the more insidious way massive corporate cash corrupts our government. As Harvard professor Lawrence Lessig points out, large corporate contributions ensure that only those candidates, regardless of party, who can collect those contributions, and espouse a corporate-friendly political agenda, stand any chance.

This creates a political system that thwarts goals of left and right.

If we don’t reverse Citizens United and confront corporate power, we can expect more corporate bailouts with no questions asked, and fewer consumer, environmental, employee and investor protections. We can expect more tax breaks for the 1 percent and more austerity for the 99 percent.

At WheresOurMoney, my colleague Harvey Rosenfield has proposed a constitutional amendment to overturn Citizens United that is easily understood and will withstand any legal challenge. You can read more about it here. There’s a great video with background and ideas about fighting Citizens United here.

You can find groups taking a variety of actions against Citizens United across the country here and here.

 

 

 

 

Action / Citizens United / Martin Column - 01/21/2012

Get Off Corporate Crack

I spent last week at the Netroots Nation conference in Minneapolis, a gathering of activists who embrace the progressive label in one way or another.

The news media was there in force, churning out stories about how these progressives are dissatisfied with President Obama’s performance. That’s especially true in his handling of the economy, where unemployment is still too high, the foreclosure crisis is still rampant, the financial sector still hasn’t been adequately reformed after its excesses and Wall Street lobbyists have tangled up in knots even the meager attempts to regulate bankers.

One refrain summed up the frustration with the president’s performance on the economy: “No one has gone to jail.”

But beyond the venting that the media focused on was another, potentially bigger story that has the possibility of leapfrogging the divide between left and right.

That was the emerging demand for a mass movement to rid our politics of the corporate funding that has been as devastating as crack cocaine was in the streets.

Our politicians are hooked on corporate crack, and they will do anything and say anything to get it. They will break any promise, without caring how foolish and hypocritical they look.

This corporate money undermines both parties: Democrats promise to protect workers and consumers but end up promoting ineffective half-measures, while Republicans express support for the free market but actually support the unfettered power of a corporate oligarchy.

I had the opportunity to point out a recent example of how this corporate crack makes fools out of politicians and even the president of the United States during a Netroots session with Jeremy Bird, national strategy adviser to the Obama campaign.

I recounted how one day after reading about a secret meeting between Obama and his Wall Street donors at the White House, I received an email from Obama asking for five bucks, promising a different kind of fundraising campaign that didn’t rely on fat cats.

“Which is it?” I asked Bird. You can read Roll Call’s account here.

Bird responded that Obama’s “multi-faceted” fundraising wouldn’t take money from political campaign committees or lobbyists,  but Wall Street contributions are welcome.

Does the president really see a distinction, or is he just hoping no one is paying attention?

If the politicians are counting on people feeling too cynical and helpless to take action, that may be changing, sparked by the U.S. Supreme Court ruling in Citizens’ United, which said that corporate campaign contributions are a form of free speech so they cannot be restricted.

During another session, John Nichols, the Nation’s crusading Washington correspondent issued a fiery call for a nationwide movement to promote a constitutional amendment to undo Citizens’ United.

He compared the potential impact of such a movement to the impact of  the movement for a constitutional amendment to ban abortion. Though the “right to life” movement hasn’t achieved success. Nichols said, it has changed the nature of the debate.
Back on the subject of overturning Citizens’ United, Nichols said, “I can live without the actual constitutional amendment. But I can’t live without the movement.”

We need a movement that labels corporate crack exactly what it is.  It’s not speech. It’s bribery.

 

Action / Around the Web / Congress / Financial Reform Legislation / Martin Column / Outrage / President Barack Obama - 06/22/2011