Citizens United

Steve Bullock | Former Montana Attorney General

Often we don’t think that a U.S. Supreme Court case can have an impact in our daily lives or political life. But there was one decided, just early 2010, that really does. It’s called Citizens United vs. Federal Election Commission. It focused on whether a non-profit that wanted to run a television ad about Hillary Clinton could use corporate dollars to do that, or if that was electioneering and got in the way of federal law.

However without a real record, the U.S. Supreme Court said, no, we want to expand the question a little bit more. We want the parties to address whether the federal laws dealing with campaign finances inhibit or impinge upon a corporation’s first amendment right to make unlimited expenditures in federal elections.

It was a question that had never really been addressed. The court ended up in a 5-4 decision. It was a split decision that basically said, you know, even though we have no record before us, even though there is about a century of precedence of cases saying otherwise, going forward corporations have a right, a first amendment right just like you and I, to make unlimited expenditures in campaigns.

This changed not only the federal system where corporations couldn’t do that, but it also especially impacted the 25 states like Montana that had always said, we do not allow corporate contributions or expenditures in our elections.

The question became then, what are its ramifications and impacts for the state of Montana and state elections?

Looking at what Montana is or was, we can go back over a century, to 1906 in Hamilton, where a newspaper editorial said, the greatest living issue facing us today is whether the people will control the corporations or the corporations will control the people. This was in 1906, because if you look at what Montana is and was, our history, unlike any other state, was dominated by corporate control of our elections.

Interestingly, I was in front of a U.S. Senate Committee testifying against the Citizens United ruling, and it was amazing because it was the successor committee to the same committee, The Senate Committee on Privileges and Elections, that a gentleman named William Clark testified in front of. William Clark was one of Montana’s Copper Kings. He literally bought a U.S. Senate race. And at that time he was called before that committee to be questioned about whether they should keep him. That happened in 1898 because of the general concern about corruption in Montana as the result of money in politics. What William Clark said even then, over a century ago, I think has equal applicability today. He testified to the committee that many people had become so indifferent to large sums of money that had been expended here-to-for, that you had to do a great deal of pushing. It takes a lot of men to go around and to get them out to vote.

So even back in 1898, a man who had bought the U.S. election through corporations was saying that people didn’t care anymore because there was so much money in elections.

In Montana, we took control of things a little bit differently than most states did. In 1912 Montana passed the Corrupt Practices Act. The Corrupt Practices Act effectively said, corporations cannot make expenditures from their treasuries to influence elections. That act in 1912 was nothing more than the people taking back an electoral system that really belonged to them and only them.

Fortunately that law passed in 1912 stood the test of time; it went a century without anybody questioning or challenging it. And as a result we have an electoral system here that is different from every other state. Think about it: the average Montana state Senate race cost $17,000. Anybody can get involved. This is grassroots politics at its best. This is a citizen legislature that meets once every two years. The average U.S. Senate race cost $8,400,000. That’s more than all 327 offices, both winners and losers, running in the state of Montana in 2008. We really did create a system where anyone can get involved and money isn’t the hallmark.

But when the Citizens United decision came down, our system was put in jeopardy. And for that reason, I’m in my office defending that 1912 initiative saying that in Montana it’s different. And I think it really is different because when the U.S. Supreme Court was looking at what’s called the McCain-Feingold Act, or the Bipartisan Campaign Reform Act, and its constitutionality, it was testing something a lot different. They weren’t looking at the vast majority of elections, those at the state and local levels. These were all about the federal races.

They said it’s difficult for corporations to participate at the federal level. You have to go through the Federal Election Commission, which takes thousands and thousands of pages. In Montana if a corporation, through its officers, wants to form a political action committee it takes one page. File one form. You could even call our equivalent of the FEC, the Commissioner of Political Practices. They have a small two bedroom house right near the Capitol. They’ll help you fill it out. There is no question that when getting involved, the barriers are not the same.

And we have a vibrant and active political system. People participate from all stripes. And corporations, through segregated funds, can otherwise participate. So the opportunities are a lot different in Montana than at the federal level to participate in the system.

One of the concerns, too, which the U.S. Supreme Court didn’t fully get it, was when they essentially said, you know, as long as there is disclosure, as long as they know who is spending the money everyone will be ok.

Well, we all knew who was spending the money when William Clark was buying those U.S. Senate seats. Even he said that we ended up with a culture of indifference. The potential for corruption really exists. And it really, really does, because in Montana we are a citizen legislature, and it is inexpensive. It doesn’t take a Copper King, unfortunately, to buy a $17,000 legislative race.

And if we think, where the Citizens United case dealt with a presidential race, which in 2012 is estimated to go for over one billion dollars, think about what happens at our local, smallest levels. County commissioners making zoning decisions, doing growth plans, doing discussions about what kind of community we want to have. By and large those races are under $5,000 and even less. We don’t want corporations or others to control those public servants.

That is what makes Montana what it is. It’s that we still expect we’re going to know our elected officials by their first name, that we can call them by their first name, and that it will still stay close to all of us, so that everyone can influence and that everyone has a voice.

And we need to be careful. That system is something we need to guard. And the Citizens United ruling jeopardizes that system.