I’m going to talk about something I care a lot about. Bear with me.
In February, the Supreme Court of the United States blocked a ruling of the Montana Supreme Court. The case concerned a state law called the Corrupt Practices Act of 1912 that forbade corporate spending on Montana elections. An organization named Western Tradition Partnership had brought the case to argue that the 2010 Citizens United v. Federal Election Commission Supreme Court ruling had invalidated the ban on corporate spending. A lower state court judge had agreed, but the Montana Supreme Court was defiant. In a 5-2 decision, they literally argued that their state’s history and demographics were so distinct that they should be exempted from the Citizens United ruling. It was a bold move that earned them admiration but ultimate condemnation from the folks over at Think Progress.
It is wrong when Newt Gingrich plots a campaign of massive resistance against judges he disagrees with, and Montana’s justices act no less illegitimately when they fail to follow a binding Supreme Court precedent. There is no reason to doubt that every word of the Montana Supreme Court’s decision — which explains in great detail how corporate money corrupts a state’s politics — is accurate, except for the part when they say that Citizens United does not force them to allow corporations to corrupt Montana.
Though the Montana Supreme Court was on shaky ground, even one of the two dissenters blasted the Citizens United ruling.
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 disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate 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. 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.
Montana likes its anti-corruption law and wants to keep it. As their Attorney General Steve Bullock told NPR, the state passed the law in 1912 for a reason:
“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.”
It’s hard to wrap my head around the fact that Montana’s top cop is named Bullock. That’s because the sheriff on HBO’s Deadwood was from Montana and also named Bullock. And the America portrayed in Deadwood is about exactly what Montana was dealing with when they created the Corrupt Practices Act of 1912. Hell, even some of the characters are the same (e.g., George Hearst). But to understand that, you have to know about the Anaconda Copper Mining Company. People found gold in the Black Hills of South Dakota. In Montana, they found copper:
Anaconda Copper Mining Company started in 1881 when Marcus Daly bought a small silver mine called Anaconda near Butte, Montana. (Anaconda would eventually own all the mines on Butte Hill.) He asked George Hearst (father of publishing magnate William Randolph Hearst) for additional support, who agreed to buy one-fourth of the new company’s stock without visiting the site. Huge deposits of another mineral, copper, were discovered soon and Daly became a copper magnate. Daly quietly bought up neighboring mines forming a mining company. He then built a smelter at Anaconda which he connected to Butte by a railway.
Butte, a small and poor town, became one of the most prosperous cities in the country, often called “the Richest Hill on Earth.” From 1892 through 1903, the Anaconda mine was the largest copper-producing mine in the world. It produced more than $300 billion worth of metal in its lifetime.
Nothing quite like discovering a mountain full of copper at the exact moment that the country was building its electric system. It gave rise to the Copper Kings, a rivalry among three fabulously wealthy men and their organizations.
The Copper Kings, industrialists William Andrews Clark, Marcus Daly, and F. Augustus Heinze, were collectively known for the epic battles they fought in Butte, Montana and the surrounding region during the Gilded Age over the control of the local copper mining industry, a fight which had ramifications for not only Montana, but the United States as a whole.
The battles between Clark, Daly and Heinze, and later between just Heinze and industrialist financiers William Rockefeller and Henry H. Rogers are a large chapter in Montana history. Eventually, a company known as Anaconda Copper emerged as a monopoly, expanding into the fourth largest company in the world by the late 1920s.
These three industrialists duked it out in legendary “Old West” style. Anyone who watched Deadwood will recognize the following description:
Those who controlled the copper mines stood to make millions of dollars, the prize sought by the three men who fought for Butte’s mineral wealth with greed and generosity, cruelty and compassion, cowardice and courage. They used their fabulous wealth to buy courts, newspapers, politicians, banks, police, and anything and anyone that could help them or hinder their opponents. To get what they wanted, their money flowed like snowmelt throughout the mile-high city and eventually reached the nation’s capital. All the while the miners toiled thousands of feet below ground in tunnels dug with blasting powder, picks, and shovels. And sometimes, backed by rival copper kings, they also battled, with fists and dynamite, either on the streets of Butte or far below the surface.
It wasn’t long before Butte began to pay a price for the riches. The air filled with toxic sulfurous smoke.
Flash forward seventy years and Anaconda Mining had created the largest SUPERFUND site in the country.
The area of Butte, Montana, Anaconda, Montana, and the Clark Fork River were highly contaminated. Milling and smelting produced wastes with high concentrations of arsenic, as well as copper, cadmium, lead, zinc, and other heavy metals. That’s why, beginning in 1980s, the Environmental Protection Agency designated the Upper Clark Fork river basin and many associated areas as Superfund sites – the nation’s largest.
So, that’s a bit of Montana’s history. Even with their anti-corruption law, their politics have been dominated by mining interests. You can read more about the period leading up the passage of the Corrupt Practices Act of 1912 here, and I encourage you to do so.
Now, the U.S. Supreme Court has ordered a stay of the ruling of Montana’s Supreme Court, but may hear the case sometime soon. Montana Attorney General Steve Bullock is preparing an amicus curiae brief for that case.
An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss. The person is usually, but not necessarily, an attorney, and is usually not paid for her or his expertise. An amicus curiae must not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes her or his views valuable to the court.
And the goal is to get the other nineteen Democratic state attorneys general to join Bullock in his submission to the Court.
When the Court issued its stay, it came with the following interesting comment attached:
Statement of Justice Ginsburg, with whom Justice Breyer joins, respecting the grant of the application for stay. Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make it exceedingly difficult to maintain that independent expenditures by corporations “do not give rise to corruption or the appearance of corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway. Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, however, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.
So, at a minimum, Justices Ginsburg and Breyer want to have a new scrap about Citizens United, and they want to use the Montana case to do it. What I want to do is encourage all 20 Democratic Attorneys General to join that fight and provide some ammunition. So, in the next few days I am going to provide you with some information you can use to lend your hand to this effort.
Because, while I like the show, I don’t want to live in Deadwood.
[In the interests of full disclosure, I am consulting with Democracy for America on issues that may be mentioned on this blog. While I will continue to express my own views and opinions, any articles that may present a conflict of interest will contain this disclosure.]
