Friday, January 6, 2012

The Return of Citizens United: Montana Strikes Back

Two years ago, we wrote about the infamous Citizens United case.  If you somehow managed to go the past 2 years without hearing about this case, or you simply need a refresher of the facts, it's actually worth (re)reading this post.  In short, this was the case where the conservative majority on the Supreme Court held that corporations have a 1st Amendment right to free speech and that this new found 1st Amendment right to free speech includes the right to spend endless amounts of money for or against political candidates through TV ads.  This decision has been ridiculed, criticized, and denounced by constitutional scholars, politicians and the general public alike because it allows corporations to dominate the political process against "We the People" in a very "David vs. Goliath" type scenario (only this time David doesn't happen to have a handy sling shot).  Indeed, one former constitutional law professor (who also happens to be our President), in a rare presidential moment, called out the entire Supreme Court during his State of the Union Address before the nation, stating that:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.
Although we're still waiting for Congress to answer President Obama's call to pass a bill to help reverse the impact of Citizens United, one state has taken matters into its own hands:

Montana voters in 1912 passed an initiative barring direct corporate contributions to political candidates and parties, a law that like those in many states was undone by the U.S. Supreme Court's controversial decision in 2010 that gave corporations the same First Amendment rights as citizens to spend their way into political debates.
But the Montana Supreme Court last week issued a forceful rebuke of the decision that has opened the door to game-changing, free-spending corporate contributions in the current election season. In a new opinion that draws on decades of Montana's coal-mining and copper-mining history, the court upheld the state's 1912-era corporate contribution limits, concluding, "The corporate power that can be exerted with unlimited political spending is still a vital interest to the people of Montana."
The decision applies only to state elections. But, if appealed as expected, the case could provide the long-awaited vehicle critics have sought for the U.S. Supreme Court to revisit the issue of corporate contributions.

In other words, the Montana Supreme Court, voting 5-2, has issued a judicial equivalent of "Badges? We don't need no stinking badges!" to the U.S. Supreme Court's directive that corporations be afforded 1st Amendment rights to spend without limit in political elections.  The Montana Supreme Court, and in particular Montana Justice James C. Nelson, gave the U.S. Supreme Court the business on this issue, going so far as to say:

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 creatures of government...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.
Tell us how you really feel.

Nevertheless, although "State's Rights" advocates, Evangelicals and the Occupy Wall Street crowd can all come together to celebrate this decision, this decision unfortunately presents one major problem as noted by one of the two Montana dissenting Justices:
Having considered the matter, I believe the Montana Attorney General has identified some very compelling reasons for limiting corporate expenditures in Montana’s political process. The problem, however, is that regardless of how persuasive I may think the Attorney General’s justifications are, the [United States] Supreme Court has already rebuffed each and every one of them. Accordingly, as much as I would like to rule in favor of the State, I cannot in good faith do so.... I cannot agree that [the majority’s] “Montana is unique” rationale is consistent with Citizens United....
[W]hat has happened here is essentially this: The [United States] Supreme Court in Citizens United ... rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a “Made in Montana” sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute.
As much as we are likely justified in saying that Citizens United was hands down the worst Supreme Court decision of the Roberts Court, the fact of the matter is that Citizens United is still a current United States Supreme Court decision and as such it is the supreme law of the land.  There are only two ways to stop it from being the supreme law of the land: (i) the Supreme Court can overrule it with a new case (obviously not going to happen with this Court) or (ii) Congress can pass a Constitutional Amendment overriding the Court's decision.1  Until either of those things happen, a state court - like Montana's Supreme Court - is not free to simply ignore the supreme law of the land.  By analogy, this would be like the Supreme Court of Kansas holding that racially segregated "Separate but Equal" schools are back in business after the U.S. Supreme Court's ruling in Brown v. Board of Education.  It simply doesn't work that way.  Such a ruling would clearly be struck down by the High Court as unconstitutional.

Citizens United adds money and corruption to a political process in a country that already has too much of both.  Moreover, since it stands for the proposition that all corporations have 1st Amendment rights, it must, by its own terms, allow foreign corporations to spend money influencing our elections.  Call me crazy, but something doesn't quite seem right about the prospect of the Shanghai Foreign Trade Corporation, for example, having direct influence over who the next President of America will be.  Nevertheless, until it is properly removed from the books, for better or for worse, we are stuck with it.

1. What are your thoughts on the actions taken by the Montana Supreme Court?
2. The last Constitutional Amendment was passed in 1992 - could there be enough consensus against Citizens United to pass another one?
3. What will it take in order for people to see that this ruling is detrimental to our political process?
4. Should Corporations have unlimited spending (i.e. "free speech") in our political process?
5. If individuals have freedom of speech, shouldn't that freedom remain intact when individuals come together as corporations?
6. Are Corporations "people"?

1 - There is a third way that a Supreme Court decision can be overruled - Congress can simply pass or amend an Act that clarifies that corporations are not afforded 1st Amendment rights.  However, like all Acts, the Supreme Court could simply choose to declare it unconstitutional.  By contrast, an Amendment to the Constitution can never be declared unconstitutional by the Supreme Court because an Amendment literally becomes part of the Constitution itself.
blog comments powered by Disqus