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Montana's challenge to 'super PACs'

Montana's high court challenges the moral basis for the US Supreme Court's Citizens United ruling that spawned super PACs. The high court needs to rebalance free speech vs. democracy.

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Police protect the Supreme Court building on the second anniversary of the 2010 Citizens United decision, Jan. 20, from protesters who say the ruling allows unlimited corporate campaign donations.

Jonathan Ernst/REUTERS

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More than a century ago, a Montana industrialist named W.A. Clark used his wealth to buy a seat in the US Senate. Mark Twain wrote that Clark’s well-monied politicking had so sweetened corruption in Montana that “it no longer has an offensive smell.”

The state’s voters did rise up, however, at the power of money. They passed the 1912 Corrupt Practices Act. Ever since, the law has prohibited corporate spending on state political campaigns.

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Now the law is under challenge in the US Supreme Court – the same court that decided in its 2010 Citizens United ruling that corporations have free-speech rights in unlimited spending on campaigns because there is no compelling case that they will demand something in return from politicians. The ruling has spawned a new kind of political-action committee, the “super PACs” now dominating the 2012 election campaigns.

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The high court is reviewing a decision in December by the Montana Supreme Court that found the state still has a continuing and compelling interest to justify speech restrictions on corporations under the 1912 law.

Montana, being a state with a sparse population that is highly dependent on big farms and expensive mining, is “especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government,” the state court wrote.

It cited many historical and recent examples of well-financed corruption as well as the fact that corporations have “a substantial presence and are active participants in Montana politics. The many lobbyists and political committees who participate in each session of the Montana Legislature bear witness.”

In addition, the court found a negative influence on voter enthusiasm from the outsized effects of corporate money. Even Clark himself admitted in 1900 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....”

The Montana court isn’t challenging the US Supreme Court directly on its reasoning in the Citizens ruling. Instead, it points to the ruling’s demand for a compelling interest – evidence – to curb corporate speech. In Montana, if not elsewhere, the evidence is clear.

If the US justices take the Montana case, they have a chance to refine their 2010 ruling and acknowledge that many states have a compelling case to curb big-money influence. Too many elected leaders allow big donors to influence official decisions.

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The corrosive effects of big money on democracy are the legal equivalent of yelling fire in a crowded theater – a reason to impinge on free-speech rights under certain circumstances. The high court must find a better balance between its protection of free speech for corporations and the rights of a democracy to protect itself from large campaign donors who expect favors.