Supreme Court Applies Citizens United to States: Rules for Robber Barons and Copper Kings

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If notorious Montana copper baron William Andrews Clark were alive today, he would be celebrating the U.S. Supreme Court decision that nullified Montana's 100 year old Corrupt Practices Act. Legal observers said Monday that the Court's ruling applies its controversial 2010 Citizens United decision to all state electoral races down to dog catcher and leaves little room for states or localities to regulate "independent" corporate campaign contributions.

Decision Nullifies Montana Law Passed by Referendum

Mark Twain wrote of copper baron Andrews Clark: "He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell." In 1912, the citizens of the state passed by referendum an anti-corruption statute that prohibits a corporation from making an expenditure "in connection with a candidate or a political party that supports or opposes a candidate or a political party."

In 2010, a 5-4 majority of the U.S. Supreme Court struck down federal limits on political spending by corporations and unions as violative of the First Amendment in the case Citizens United v. Federal Election Commission. The Court's conservative majority reached the conclusion that "[n]o sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations." Direct corporate campaign contributions to candidates remain subject to limitation. But the Court's conservatives made the preposterous claim that there is no risk of corruption, or even the appearance of corruption, when corporations spend millions influencing elections, as long as the spending is not coordinated with a candidate's campaign.

In 2011, the Montana Supreme Court took issue with Citizens United. Given the state's history of business-driven corruption, the court reasoned, there remained a very real risk of corruption from corporate political spending, even if made independently of a candidate. The Montana Supreme Court found that Montana's history of corruption was sufficient to justify the state's 100 year old anti-corruption statute, despite Citizens United. Yesterday, a five-member conservative majority of the U.S. Supreme Court issued an unsigned, one paragraph decision to nullify the law and put an end to resistance by the state court.

So Much for States' Rights

Justice Stephen Breyer, writing for four justices, delivered a brief dissent, scolding the majority for rejecting its own principles about the importance of federalism. He wrote: "Even if I were to accept Citizens United, this Court's legal conclusion should not bar the Montana Supreme Court's finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption." "Montana's experience, like considerable experience elsewhere since the Court's decision in Citizens United, casts grave doubt on the Court's supposition that independent expenditures do not corrupt or appear to do so," Breyer continued.

Common Cause President Bob Edgar called the Court's decision "arrogant" by "refusing to even grant a hearing on a Montana law that has served the state well for a century." He said the decision "underscores the need for quick action on a constitutional amendment to overturn Citizens United and allow sensible restrictions on political spending."

Montana Governor "The Fight is Not Over"

Montana Governor Brian Schweitzer signaled the way forward in his comments to the press. "The fight is not over. We are going to overrule the Supreme Court with a constitutional amendment to make clear that the people are in charge of America, it's not we the corporations. Here in Montana, we are putting it on the ballot."

Across the country there has been growing support for a constitutional amendment to reverse Citizens United. Any constitutional amendment would have to be ratified by 3/4 of the states. CMD and other progressive groups have endorsed amendment language introduced in the U.S. House by Ted Deutch (D-FL) and in the Senate by Bernie Sanders (I-Vt) and Mark Begich (D-AK). You can sign a petition in support of the amendment here.

CMD's Mary Bottari contributed to this article.