Montana is prettier, emptier and, if you catch it at the wrong time,
colder than most places in the United States. But it is still part of
the United States - even if the state Supreme Court wants to pretend
that it isn't.
Five of the state court's seven justices recently expressed their disapproval of the U.S. Supreme Court's Citizens United decision by announcing that, due to Montana's special history, Citizens United does not apply beneath the famous Big Sky.
There
is no chance that this position will stand. There will be no need to
send in Federal troops, notwithstanding an old saying, dating back to
the Gold Rush of the 1860s and 1870s, that "the Confederate Army never
surrendered; it just retreated to Montana." But the state court's
action, and the encouraging response it received from two members of the
U.S. Supreme Court, is still disturbing.
Montana is one of a
handful of states that have a highly developed sense of being unique by
virtue of geography, history and local culture. I know Montana's
perspective because I lived there for nearly seven years while I went to
college and started my working career.
In 1972, shortly before I
arrived, Montana wrote itself a brand-new constitution, filled with
cutting-edge innovations such as guaranteeing the public's right to
attend government meetings and see government documents. Montana has a
deep-seated interest in maintaining clean, responsive and open
government.
This is largely a reaction to the state's political
history of corruption and exploitation at the hands of out-of-state
corporate interests, which has gradually enlarged to a sometimes
self-defeating mythology. Such corporate interests ran rampant in the
early 20th century, most notably in the case of warring "copper kings,"
whose feuds ultimately resolved in the consolidation of power by the
Anaconda Copper Company. Anaconda controlled most of the state's leading
newspapers, and many facets of state and local government, until the
late 1950s.
Steve Bullock, Montana's Democratic Attorney General,
told NPR, "Our legislature, our judges, down to the local county
assessors, were almost bought and paid for. Mark Twain even said that,
you know, the amount of money coming in in Montana makes the smell of
corruption almost sweet." (1)
In response, Montana legislators
passed the state's Corrupt Practices Act in 1912. The law prohibited
corporations from spending money to promote or attack political
candidates, a position that Citizens United overturned by
holding that corporations and labor unions have a free-speech right to
spend their own money on political advertising.
Of course, Montana
being what it was in 1912, there were ulterior motives for the passage
of the Corrupt Practices Act. By that point, the state's most powerful
interests had gained control of Montana's politics and newspapers. They
did not need to spend money on political advertising; their editors, who
ran the newspapers I later worked for, hyped or killed the stories they
were told to hype or kill. The Corrupt Practices Act was designed to
entrench Montana's then-existing power structure.
But the Montana
Supreme Court cited the purportedly pure goals of the 1912 law when it
took the position - one that it knew full well it had no power to take -
that Citizens United has no force within Montana's boundaries.
The Montana justices, in a 5-2 decision, argued that the state law
somehow superseded the federal decision.
It is as though Mississippi had rejected Brown v. Board of Education, or as if California had ignored Loving v. Virginia.
Imagine if the Florida Supreme Court had contended that the U.S.
Supreme Court had no authority to rule on Florida's election recount in
2000's Bush v. Gore.
The justices in Washington rightly
stayed the Montana court's decision. But two justices, Ruth Bader
Ginsberg and Stephen Breyer, foolishly encouraged the state's position
by arguing that the Montana case is a suitable vehicle through which the
U.S. Supreme Court might revisit Citizens United, a decision from which both Ginsberg and Breyer dissented.
Would they feel equally disposed to review a state Supreme Court decision holding that Roe v. Wade is of no force and effect? I highly doubt it.
Reversal
of the Montana ruling is a foregone conclusion. Even the Montana judges
know this. Montana Justice James C. Nelson was clear about his personal
issues with Citizens United in his dissent, but went on to write, "Like it or not, Citizens United is the law of the land as regards corporate political speech. There is no 'Montana exception.'" (2)
The
question, then, is whether the Montana judges can get another shot at
the Supreme Court simply by brazenly defying a two-year-old holding. It
is noteworthy that Justice Sonia Sotomayor, who dissented in Citizens United along
with Ginsberg and Breyer, did not join Breyer's memorandum calling for a
rehearing. Neither did Justice Elena Kagan, who was not yet on the
court when it decided the case.
A rehearing would be exactly the wrong response to Montana's defiance. The right response would be a summary reversal.
Assuming none of the justices who were in the Citizens United
majority are inclined to revisit the issue, both Sotomayor and Kagan
would have to join Breyer and Ginsberg in voting to hear the Montana
case in order to get it before the court. Here's hoping at least one of
them has enough sense not to do so. If we start inviting state courts to
disregard Supreme Court holdings, there is no telling where that path
could lead, other than "nowhere good."
I have a lot of affection
for Montana and its residents, but the state is not nearly as special,
nor as oppressed or vulnerable to oppression, as its people think it is.
In the 30 years since I left Montana, its neighbor to the west, Idaho,
has developed a significant technology industry. To the east, South
Dakota has made itself a banking center, and North Dakota has become
headquarters to an energy boom. What industry has Montana itself
developed since I departed? Not much, except electronic gambling. Almost
every bar in the state (this is a state with an amazing ratio of bars
to people) has video poker and similar machines.
That's not
oppression by out-of-state money. That's a symptom of a state that is
too busy pitying itself to fully participate in the 21st century. I
visit once or twice a year, and I feel sad for this place that I still
care about.
Out-of-state money doesn't vote in Montana elections.
It buys ads, as it does everywhere else, and those ads represent nothing
more than political speech. For good or ill, Montanans will decide
their own elections and their own fate. But Montana is still one of the
50 states, and the U.S. Supreme Court has legal jurisdiction over all 50
of them.
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