A Gillette-Torvik Conversation™: The Montana Corporate Speech Case — PART TWO

[Here is part one of the Conversation™.]

GILLETTE: The first thing that struck me about the case, and perhaps this goes to your subjective nature of reality posts, is how ludicrous at least two, if not all three of the plaintiffs’ claims are. One plaintiff, Champion Painting, Inc., is a sole proprietorship owned by Kenneth Champion, who is apparently the only employee of the company. Opinion ¶ 5. Mr. Champion is personally active in county and state politics, supporting and opposing candidates through blogs, letters to the editor, and speeches. Id. Mr. Champion believes (emphasis mine) that the Montana law prohibits him from speaking as the corporate spokesman of Champion Painting and prohibits him from using corporate funds to independently support or oppose candidates. Id. He also believes (emphasis mine) that an endorsement by Champion Painting would help his message. He also believes that there would be tax benefits to his corporation spending the money instead of him. ¶ 18. Apparently, he did not provide the court with anything by which it could gauge whether Mr. Champion’s beliefs were supported by fact. Please pause to consider the fact scenario by which a person might find the endorsement of the owner of Champion Painting unpersuasive but find the endorsement of the company Champion Painting persuasive.

Similarly, another plaintiff, the Montana Shooting Sports Foundation, has, for over 10 years, operated a political action committee in Montana and publicized the foundation’s grading and endorsements of candidates in state and national elections. ¶ 6. Gary Marbut, the foundation’s founder says that the foundation has “some weight with the Montana public by virtue of [the foundation’s] long history of activism in Montana.” Id. However, Mr. Marbut believes that Montana law prohibits him from using the foundations member dues (but not donations) to support or oppose candidates. Id. As the Court notes, Mr. Marbut is simply wrong in his belief. ¶ 17.

Perhaps unsurprising given the above, neither Mr. Marbut nor Mr. Champion could articulate a way that the Montana law hindered their political speech. Id.

Then we come to the third plaintiff, Western Tradition Partnership Inc. It is a Colorado corporation but is not a business corporation. ¶¶ 7, 19. Its purpose, according to the Montana Attorney General, is to solicit and anonymously spend the funds of other corporations, individuals, and entities, to influence the outcome of Montana elections. ¶ 19. As the opinion notes, Western Tradition is refreshingly upfront that its expenditures will, in fact, influence Montana elections. It told potential donors “The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this. You can just sit back on election night and see what a difference you’ve made.” Id. Western Tradition has not been complying with Montana Election laws and has brought at least three lawsuits in Montana state and federal courts to overturn various Montana election laws it doesn’t like. One of the dissenters said Western Tradition engaged in “blatant hypocrisy.” ¶ 69 n.3. The dissent, of course, wanted to rule in favor of Western Tradition.

Anyway, you didn’t ask whether I thought the plaintiffs were nincompoops. You asked whether any of the opinion’s distinctions were persuasive to me. The answer is yes. In Citizens United, the government did not claim that corporate expenditures had actually corrupted to political process. Thus, Justice Kennedy wrote that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Citizens United, 130 S.Ct. at 909. Looking at the history of the State of Montana, the Montana Supreme Court said “[e]xamples of well-financed corruption abound.” ¶ 23.

The opinion goes on at length with these examples, which I was unaware of and found amazing. I won’t go too much into them but there were examples of corporations paying judges for decisions, bribes paid to the Montana legislature to seat W.A. Clark as United States senator that were so notorious, the Senate unseated him. At one point one a subsidiary of Standard Oil controlled 90% of the newspapers and a majority of the legislature. Things were so bad that even Senator Clark admitted that many people were indifferent to voting because of the large sums of money expended to control politicians. Because of Montana’s small population, current Montana politicians submitted affidavits describing how corporate spending significantly affects the outcome of elections today. At a minimum, it seems to me that the Montana Attorney General was trying harder to defend the statute then the government did in Citizens United.

One thing that is interesting about decision is that while the majority opinion doesn’t attack the concept of corporate personhood, the second dissent, by Justice James C. Nelson, attacks the concept relentlessly and remorselessly. Justice Nelson, who dissents because he agrees with Professor Volokh and Ms. Lithwick that Citizens United controls the outcome of the case, writes:

While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters the notion that corporations are disadvantage in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and its state legislatures. It is hard to tell where government ends and corporate America begins: the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders who favored the preeminence of individual interests over those of big business.

Second, I disagree with the premise that unlimited corporate political speech is essential to ‘enlightened self-government’ and aids in the electorate in making ‘informed choices.’ Citizens United¸130 S.Ct. at 898, 907. I agree that “[r]hetoric ought not to obscure reality.’ Citizens United, 130 S.Ct. at 907. But I cannot agree that Citizens United majority’s views reflect “reality.” For one thing, voters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse or disenchant voters.

There’s more to the dissent that we should, and perhaps will, discuss. But let’s start with these two points. I think that Justice Nelson is correct that current First Amendment jurisprudence equates speech and money. But should those things be equal? Second, do you think that “more speech” or at least the speech we currently get in elections, is particularly useful in terms of ferreting out the truth? As lawyers’ we believe that truth emerges in our adversarial system. But in a trial, each side gets an equal opportunity to present its case to the judge and jury. That doesn’t necessarily happen in elections because one side may spend vastly more than the other.

TORVIK: Hmm. That's a lot to chew on. I will have to sleep on this and get back to you tomorrow.

TO BE CONTINUED...