What part of “free speech” does the Montana Supreme Court not understand? That was the question that arose after it upheld a state ban on corporate campaign spending — in defiance of the U.S. Supreme Court’s 2010 ruling that corporations are entitled to participate in debate about elections. On Monday, the court informed the Montana justices: We meant what we said.
Montana’s law barring such outlays was passed in 1912 and the state court contended it remains constitutional. It ruled, in effect, that the decision in Citizens United v. Federal Election Commission by the highest court in the land was null and void in Montana because of the state’s history of political corruption at the hands of powerful businesses.
It’s worth pondering how powerful those corporations actually were back then if they couldn’t stop the state Legislature from passing this law. It’s also worth asking if the alleged mischief that took place more than a century ago sheds much light on the realities of modern politics.
Not that such realities cut much ice with those who regard the Citizens United ruling as a threat to democracy and a boon to special interests. The special interests that supposedly gained such entree from the ruling, contrary to myth, have shown little interest in exploiting their new freedom.
As an amicus brief filed by Senate Republican Leader Mitch McConnell pointed out, of the $96 million contributed to Super PACs supporting one GOP presidential candidate or another in the primaries, less than 14 percent came from corporations. Less than 1 percent came from publicly traded corporations, which were assumed to be the chief beneficiaries.
There were howls of outrage and anguish during the primaries when these committees blanketed radio and TV outlets with ads touting one candidate or trashing another. This free-for-all confirmed the belief of many liberal groups that corporations were brazenly trying to buy elections.
What was overlooked is that most of the activity reflected independent expenditures by wealthy individuals — which has been allowed ever since the Supreme Court’s 1976 decision in Buckley v. Valeo. The court said then, “Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.”
Casino tycoon Sheldon Adelson gave more than $20 million to a Super PAC backing Newt Gingrich. But for that, he didn’t need Citizens United. In 2004, as writer Wendy Kaminer notes, “a few billionaires with ideas funded the swift boating of John Kerry.”
What’s so terrible about such efforts? Advocacy ads financed by rich donors can be harsh, inflammatory and deceptive. But so can ads paid for by candidates. Yet they sometimes also contain information that enables citizens to assess their choices better.
These spots are not likely to have any effect, pro or con, unless they provide pertinent facts or persuasive arguments. All Adelson’s money, remember, couldn’t persuade Republican primary voters to entrust Newt Gingrich with the party’s presidential nomination.
If and when corporations decide to start laying out large sums to advance their views in political campaigns, they will find that spending and winning are not the same thing. Montanans, meanwhile, will find they can reach their own conclusions. The message from the Supreme Court: It’s free speech. Get used to it.
