“Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case,” Justice Stephen Breyer wrote in regard to American Tradition Partnership v. Bullock. “But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition.” And there we have a portrait of today’s Supreme Court: Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United.
One also sees the radicalism of the Roberts Court: the case involves a Montana law that was enacted almost exactly a hundred years ago, to keep corporations from making political donations in campaigns in the state—and in 1912, when it was passed, they did so with abandon. “When in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did?” Montana Supreme Court Judge Mike McGrath wrote in the 5-2 decision that was overturned today. But Citizens United was never about stopping government overreaching, but about a shifting jolt in the role of money in elections. Here, the conservatives on the Court prove to be peculiarly indifferent to hard-learned lessons of history.
The Montana law came about, in its original form, by way of a voter initiative; it was called the Corrupt Practices Act. Breyer mentioned that the Montana Supreme Court had taken into account the state’s “history and political landscape.” That it did, in some detail. McGrath, in his opinion, describes how, in 1903, the governor and legislature “capitulated” to the Anaconda company, a source of bribery for every branch of government; how W. A. Clark, a Copper King, bought a Senate seat and then, when the bribery proved too blatant and the Senate refused to seat him, paid enough money to get appointed a second time and then, after resigning in the face of an investigation, a third time:
In 1900 Clark himself testified in the United States Senate that “[m]any people have become so indifferent to voting” in Montana as a result of the “large sums of money that have been expended in the state….“
And along with McGrath’s many legal citations and historical notes, there was this one:
Referring to W. A. Clark, but describing the general state of affairs in Montana, Mark Twain wrote in 1907 that Clark “is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.” Mark Twain, Mark Twain in Eruption, 72 (Harper & Bros. 1940).
But Citizens United does not just mean that we may fall asleep and wake up in Montana, 1912. The Montana Court also recounts the less blatant, but still real, power of the mining companies in the legislature in the seventies, as well as ongoing actions. The case at hand involved a number of groups, including Western Tradition Partners. The Montana Supreme Court decision referred to “the shadowy backers of WTP” and added, “We take note that Western Tradition appears to be engaged in a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements.” It continued:
Evidence presented by the State in District Court and not refuted by WTP is that its purpose is to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections….
In a decision in October, 2010, the Montana Commissioner of Political Practices found that WTP had created a sham organization through which to channel campaign funds, and that its arguments to the contrary were deceptive. The Commissioner further concluded that WTP’s failure to register as a political committee and to disclose the true source and disposition of the funds it raised “frustrates the purpose of Montana’s Campaign Finance and Practices Act [and] raises the specter of corruption of the electoral process.”
It is enough of a problem that the Roberts Court, in Citizens United, failed to remember the past or consider the future. But it also was blind to the present. “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does,” the Court’s unsigned decision read today. What that means is that Citizens United is not only a bad decision, but an infectiously bad one.
Photograph of W. A. Clark by Paul Thompson/FPG/Getty Images.