The Challenge to Citizens United from the Montana Supreme Court


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    One of my campaign slogans is “Let’s show how people power can defeat the Money Power.” The issue of money in politics was the topic of the first piece I wrote that appeared in national media. This was back in the 1970s.

    There is hardly a policy issue more central to defining what America will be.  

    Will we be true to the democratic vision, in which every citizen is entitled to an equal say in determining our destiny as a nation? Or will the inequalities of wealth our economy produces be allowed to corrode that democratic sense of justice, and effectively put our government up for auction?

    Will the government by FOR the people and BY the people? Or will it be government OF the people but BY and FOR only the rich and powerful?

    If this was a core issue thirty-some years ago, when my op/ed piece appeared in the Christian Science Monitor, it is even more urgent today, when a) inequalities of income and wealth are bigger than they’ve been in living memory, b) corporate power is ever more concentrated, and especially c) the Supreme Court handed down that attrocious opinion in 2010, called Citizens United.

    Citizens United was a decision based upon two major fallacies: 1) the idea that writing a check is a form of “speech” that must be protected by virtue of the first amendment, even with respect to our electoral process and 2) the idea that corporations are persons.

    In recent days, the Supreme Court of Montana upheld its own state’s laws barring corporations from making contributions or expenditures to help a candidate or political party.

    Time will tell how the Supreme Court will deal with this act of apparent insubordination from the Montana Court. In general, I favor the idea of “supremacy” of the national government, and oppose notions of “nullification.”

    But in this particular case, I applaud the justices of the Montana Court for standing up for justice and common sense against that scandalous corporatist decision.

    Here’s a passage from Dahlia Lithwick’s article about this subject from]

    Prof. Richard L. Hasen, …back in October, point[ed] out that the fundamental flaw in Justice Kennedy’s majority opinion in Citizens United lay in his assertion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” That sentence opened the door to super PACS and ignored the reality of everything we all know about the corrupting influence of unlimited money on a political campaign.

    ‘Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does.

    The Montana majority…knows exactly what Justice Kennedy seems to have missed: That corruption is corruption regardless of its packaging, and that it rarely comes with a detailed disclosure label.

    … As Judge Nelson wrote in dissent [dissenting only because he felt obliged to bow before the opinion of the higher Court], “the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield enormous 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.”


    Andy Schmookler is running for Congress in the 6th Congressional District of Virginia, challenging the incumbent Congressman, Bob Goodlatte.  An award-winning author, political commentator, radio talk-show host, and teacher, Andy moved with his family to Shenandoah County in 1992.  He is a graduate of Harvard University and holds a PhD from the University of California at Berkeley.  


    To learn more about Andy, please go to his website. You may also follow Andy on Facebook and on Twitter.  


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