Private: The Populist, Bipartisan History of the Now-Invalidated Montana Anti-Corruption Law

by Nicole Flatow

The U.S. Supreme Court today struck down Montana’s 100-year-old anti-corruption law without ever hearing arguments in the case. Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations “do not give rise to corruption.”

A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912. As Justice Stephen Breyer wrote in his dissent in American Tradition Partnership, Inc. v. Bullock, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

Montanans have been battling corruption from outside interests looking to exploit the territory's vast natural resources since before they became a state, University of Montana law professor Anthony Johnstone explained during the American Constitution Society’s 2012 National Convention this month. To Montanans fighting to retain control of their democracy, the corruption was obvious, and they "called it as they saw it," Johnstone said. Here's how they did it:

Rather than looking to far-off courts or congressmen, they said enough is enough. And a supermajority of miners and farmers and businessmen, a Republican newspaperman from the small town of Fort Benton, who also happens to be my great great grandfather, got together and said, wait a second … this is popular sovereignty here.

You, our politicians in our corrupted capital do not govern us. You, our courts sworn to uphold our Constitution do not govern us. You, copper kings in your far-away mansions certainly do not govern us. We govern us. And so they did.

They took the initiative power upon themselves, and shortly thereafter, 100 years ago in 1912, passed the Corrupt Practices Act. And that corrupt practice that they targeted was corporate contributions or payment in support or in opposition of political candidates or nominees. They called it as they saw it: Corruption.

Nowadays that law, which some refer to as a ban on corporate speech -- I’m not sure anyone in Montana for the past century would say that corporate or any other interest have been silenced -- it requires them to fill out a two-page form, file it and participate in an American tradition of political accountability to real people. You put your name where your money is, you spend your own, not other people’s money on campaigns, and you stand up and be heard.

Ironically, a group calling itself American Tradition Partnership … in the wake of Citizens United for the first time in this century-long history sued to throw out our Corrupt Practices Act. Our Montana Supreme Court to its credit, which like most courts in this country are elected and know something about politics, upheld it, and held that Montana has a compelling interest in preserving the integrity of its democracy. Unfortunately, the U.S. Supreme Court, in reviewing American Tradition Partnership’s petition, stayed the Montana Supreme Court’s decision and left us for the first time in a century without the protection of the Corrupt Practices Act.

... I hope that the lesson that we’re able to take away from this is not the 2012 lesson of abstract legalities or what happens in the halls of the U.S. Supreme Court or any other court. But that the lesson is rather not from 2012 but from 1912, when a group of people, a supermajority across partisan lines, saw corruption, called it as they saw it and took an important step towards reclaiming their democracy. 

Watch Johnstone's remarks at the ACS Convention, "Democracy at Stake" below, and watch the full panel discussion on Citizens United and money in politics here.

Campaign Finance, Constitutional Interpretation, Democracy and Elections, First Amendment, Supreme Court