U$A: The Best Elections Money Can Buy

Montana Indicts the U.S. Supreme Court

By AJ Wagner

The Supreme Court of Montana told the Supreme Court of the United States what it thought of its decision in Citizens United v Federal Elections Commission – the decision that said corporations were entitled to the protections of the First Amendment when it comes to campaign financing. They didn’t like it.

In fact, they disliked it so much they ignored the general principal that states cannot limit the rights given in the Constitution of the United States as interpreted by the United States Supreme Court, and in Western Tradition, et al. v Attorney General of Montana, et al, they voted 5 – 2 to uphold a ban of corporate money in their state elections.

The two Montana justices in the minority didn’t like the Citizens United decision either, but felt they were compelled to follow the law as defined by the highest federal court. To quote Justice James C. Nelson, one of the two dissenting Montana Supreme Court justices, “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 creatures of government.”

Actually, Justice Nelson makes five points in his dissenting opinion that contradict the Citizens United decision while upholding that decision out of obligation to the law.

First, Justice Nelson attacked the notion in Citizens United that corporations were somehow disadvantaged. “The truth is,” he stated, “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.”

Second, the good justice disagreed with the premise that unlimited corporate political speech is essential to “enlightened self-government” and aids the electorate in making “informed choices.” Justice Nelson said, “For one thing, voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half-truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse, and disenchant voters.”

A third point: Citizens United allowed that corporate shareholders could object to the spending with which they disagree. Justice Nelson opined, “I do not believe that participation in ‘corporate democracy’ actually accounts for anything—unless, of course, the objecting shareholder is an insider or owns a controlling percentage of the outstanding stock.”

Justice Nelson continued, “Fourth, 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.

Fifth, therefore, I cannot agree with the holding that the prevention of corruption in the form of independent expenditures is not a compelling state interest … 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.”

This all comes up now because last week the Supreme Court of the United States, via Justice Ruth Bader Ginsburg and Justice Stephen Breyer, blocked the Montana decision while allowing the case to be heard by the top court. In their statement blocking the Montana decision, Justice Ginsberg wrote, “Montana’s experience, and experience elsewhere since this court’s decision” in Citizens United “make it exceedingly difficult to maintain that independent expenditures by corporations give rise to corruption or the appearance of corruption, 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 the Montana court actually heard evidence as to the corruption of money in politics, some believe their decision should be given a hearing. In Citizens United the Supreme Court concluded that expenditures might result in “influence over or access to elected officials” but would not “corrupt” them. Montana’s case shows the lived experience over the hoped-for ideal of Citizens United.

Though not likely, this opens the door for Citizens United to be put to rest.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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