Criticisms United

Montana has quickly vaulted up the ranks in the yet-uncompiled list of States I Love For Reasons That Have Nothing to Do With Liveability. It did so in one fell swoop with the Montana Supreme Court’s decision in Western Tradition Partnership, Inc. v. Attorney General, which was basically one big fuck you to the United States Supreme Court’s Citizens United decision. Citizens United is normally referred for the proposition that “corporations are people,” but what it really decided was the validity of corporate campaign finance regulations, which most observers (on the inside and out) agree is a corrupting and dangerous influence that has dominated congress.

The problem posed by Citizens United is one of presumptions, as is so often the case in constitutional law: because lower courts have to read the tea leaves of the scant Supreme Court decisions that may govern a topic in order to determine how the law should apply, a line in a Supreme Court decision may have serious effects on subsequent decisions. For example, Citizens United posed the dilemma of how corporate campaign finance regulation facially regulates speech in a discriminatory manner. As corporations are tantamount to people in terms of their enjoyment of constitutional protections, the Supreme Court reasoned, these laws should receive a level of judicial review called “strict scrutiny.” Strict scrutiny is where the Court weighs the government’s interest against the constitutional right or principle, which comes with a heavy burden that the government must meet to justify the discrimination or infringement of rights (note: strict scrutiny is usually the Court’s code for “we’re not going to let this bill survive”). The most infamous instance where strict scrutiny was applied and the Court found the government’s interest sufficiently compelling came in Korematsu v. United States, where the Court–in an abundance of deference to the Executive Branch to conduct war–allowed the government’s internment of Japanese Americans during World War II.

In striking down the regulation at issue in Citizens United, the U.S. Supreme had to say that the government doesn’t have a particularly compelling interest in regulating corporate speech. Justice Kennedy’s line of logic that dictates the difficulty for a legislature to justify campaign finance regulation of corporations is:

independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

Which brings us to the Big Sky State, where a law on the books since 1912 provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The Montana Supreme Court upheld the law, even after applying strict scrutiny, on the grounds that Montana had a compelling interest in regulating corporate speech, given Montana’s “unique history” in dealing with corporate influence in politics.

Noting that, back in the last Gilded Age, Montana’s wealthy “Copper Kings” bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.

And Montana’s move may be much more interesting in contexts apart from the Citizens United kerfuffle. The Montana Supreme Court grounded its decision in an survey of the applicable facts (rather than relying on a legal presumption irrespective of the factual considerations that went into a given decision) in order to find that the government’s interest in promoting democracy compelling enough. This tactic could be applied in other instances, especially if the reviewing Court is inclined to give any deference to the legislature.

So what do we do with this kind of precedent? Maybe we can start by saying that the government has valid and compelling interests in regulating corporate campaign finance as a method to guarantee that our country maintains a healthy and republican form of government? You know, like it says in Article IV, Section 4 of the Constitution that the government is required to:

The United States shall guarantee to every State in this Union a Republican Form of Government…

The fact that the Guarantee Clause has been held to be a non-justiciable issue is just one more reason the Courts might consider exercising some judicial prior restraint.