In the coming weeks, the United States Supreme Court will hand down an opinion that could have vast implications for Montana’s campaign finance laws, potentially altering bedrock rules that have governed the state’s politics as far back as 1912 – an era when it was controlled by the Anaconda Copper Company and the Montana Power Company. Depending on how it rules, the Court could allow corporations to once again make direct political contributions if it decides the free-speech rights of those corporations are currently being infringed.
“Montana has a real interest, a long-standing interest, in putting limits on corporate control and keeping corporate money out of elections,” said state Attorney General Steve Bullock, who co-wrote a July brief for the Court urging it to uphold current laws, and which was signed onto by the attorneys general of 25 other states. “This is what Montanans have wanted and kept in place for close to a century.”
The court case all began with Hillary Clinton – or, more accurately, a conservative documentary about Hillary Clinton during her 2008 presidential run. This summer the Supreme Court was scheduled to rule on whether a documentary film attacking Clinton titled, “Hillary: The Movie,” which was produced by the conservative nonprofit group, Citizens United, could be defined as a campaign ad under the Bipartisan Campaign Reform Act – also known as the McCain-Feingold Act.
Widely regarded as one of the most important First Amendment cases to come before the Supreme Court in years, Citizens United was appealing a district court decision that said airing TV commercials for the movie within 30 days of a primary election violated that provision of the McCain-Feingold Act. The McCain-Feingold Act broadly says corporations and unions can’t make direct contributions to political advertisements within 60 days of a general election and within 30 days of a primary, but must channel its funding through political action committees (PACs) or solicit individual employees or members to contribute on their own.
But after hearing March arguments, the Supreme Court, instead of delivering an opinion, ordered a re-argument on the much more sweeping question of whether prior cases upholding restrictions on corporate political expenditures should be overruled. And that’s where Montana stepped in, circulating a “friend-of-the-court” brief to other states urging the Supreme Court not to overrule a 1990 decision upholding state restrictions on “corporate electioneering” paid for by those corporations’ general treasury funds.
In the brief, Bullock writes that the 1990 decision, Austin v. Michigan Chamber of Commerce, maintains a vital separation within corporations where political contributions are concerned.
“The segregated fund protects the integrity of the political process from the corrupting influence of corporate executives funding political campaigns that have no proven support from the shareholders or customers whose money pays for the advocacy,” the brief states. “Corporate electioneering corrupts the relationship between public officials and the public interest by encouraging political dependence on narrowly concentrated private interests embodied in the corporate form.”
The election law in Montana that could be disrupted by a Supreme Court decision overturning Austin v. Michigan harkens back to 1912, when voters – sickened by corruption – passed an initiative banning corporate spending on candidates, among other things.
Montana’s political corruption at that time was exemplified by the ascension of copper magnate William Clark to the U.S. Senate in 1899 after bribing state legislators – who at that time selected the state’s federal delegation – to vote for him. Despite a Senate investigation that found Clark had indeed paid off state lawmakers, he managed to serve one term in Washington after a new Montana Legislature, also bribed, voted him into office.
The incident underscored the pervasive corruption of Montana’s political climate, resulting in a slew of progressive measures passing in the 1912 vote, according to Dennis Swibold, a professor at the University of Montana’s School of Journalism and the author of “Copper Chorus: Mining, Politics, and the Montana Press, 1889–1959.”
“This was a huge reform election,” Swibold said, describing the measures as a revolt against, “all the Copper Kings using the financial climate to corrupt, basically, the legislative process in Montana.”
Other reforms adopted during that time included: the election of U.S. senators by citizens, not lawmakers; the holding of primary elections to select party nominees over backroom dealing; a requirement that candidates file campaign expenditure reports; and the requirement that the secretary of state must publish a voter information pamphlet.
“It was a time of real foment and protest,” Swibold added, “a real backlash against a lot of the corruption that had come before, not just in Montana, but in a lot of the country.”
It’s unclear what affect the current Supreme Court’s ruling, expected in the next week, could have on Montana’s campaign finance laws.
“It’s hard to make, I guess, a New Year’s prediction,” Bullock said last week. “There’s any number of ways that the court could ultimately go.”
Depending how the court rules, it’s possible sparsely-populated Montana could see an influx of corporate money from out of state if campaign finance rules are relaxed.
“There is a possibility, certainly, that there would be changes in the amount of money that comes into races and where it came from,” Bullock said.
If the court decision affects Montana’s specific limits on political contributions by individuals, PACs or corporations, he added, it may fall on the Legislature to make changes to state law consistent with the ruling.
But while any ruling is surely not going to revert Montana’s politics back to the era of the Copper Kings, no one will be able to assess the effect on the campaign finance laws in Montana or any other state until the court issues its opinion.
“It’s really hard right now,” Bullock said, “unlike a lot of cases that often end up in the court, to identify what the impacts would be.”