< Montana Goes Its Own Way on Citizens United

Transcript

Friday, January 20, 2012

BROOKE GLADSTONE:

Friday, Occupy the Courts protesters scheduled hundreds of rallies to staunch the flow of so-called "dark money" from undisclosed donors into Super PACs. Two Maryland representatives have called for a constitutional amendment to overturn Citizens United. And now the high Court's decision has been challenged by a lower court in Montana.

That court found that Montana's history of corporations corrupting politics gives the state a compelling interest in maintaining its ban on political contributions by corporations. There were two dissenting judges who insisted that Montana's Supreme Court was bound by the High Court's decision, but one of them, Judge James C. Nelson, was nevertheless revolted by the Supreme Courts move to endow corporations with citizen's First Amendment rights.

"While corporations and human beings share many of the same rights under the law," he wrote, "they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons."

Adam Liptak covers the Supreme Court for The New York Times. Adam, welcome back to the show.

ADAM LIPTAK:

And it's good to be here, Brooke.

BROOKE GLADSTONE:

So how did the Montana Supreme Court come to be ruling on Citizens United?

ADAM LIPTAK:

It's such an interesting case. So Citizens United says that whenever the government wants to regulate speech, particularly speech about politics, including speech by corporations about politics, the government needs a really good reason.

And the Supreme Court said that in Citizens United there was no such good reason, that independent spending by corporations, which was at issue there, could never corrupt somebody by its very nature. You know, if you're spending independently of somebody, not giving them money, how is that going to corrupt them, says the Supreme Court.

BROOKE GLADSTONE:

The Supreme Court, through Justice Kennedy, asserted that there wasn't any proof that independent spending had a corrosive influence on politics.

ADAM LIPTAK:

That's right. And the word "proof" you use is an interesting word because there's a big debate about whether Kennedy left open the question that more proof might get you a different result. He writes, "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." So that sounds like a legal rule, not — not something that you might be able to overcome with more facts.

BROOKE GLADSTONE:

Nevertheless, Montana's Supreme Court tried to do exactly that.

ADAM LIPTAK:

The Montana Supreme Court comes along and says, you know, Montana's different. Montana's history, where corporations really did control this sparsely populated state and all of its media, gave rise to a different set of facts to say that independent spending by corporations could be regulated.

The most interesting part of the decision though is not the majority. It's the dissent. There are two dissenters. The one who writes the longest one is named Justice James C. Nelson, and he goes on about how much he hates Citizens United, how much he disagrees with it. But he says, listen, I'm gonna hold my nose and faithfully apply what the Supreme Court tells me to. I got no choice.

BROOKE GLADSTONE:

Do you think that challenges to Citizens United are likely to continue to mount up, or is this just a principled show of opposition from the State of Montana that suffered from the corrupting cash of the "gilded age" copper kings?

ADAM LIPTAK:

I'm not sure there's anything especially wrong with a lower court giving the Supreme Court an opportunity to consider whether there is some reason to trim its earlier decision. The only way to get a test case is for someone to employ a kind of judicial civil disobedience.

Another road they might go down is to look at Justice Kennedy's own decision from just a few months before Citizens United, where he seems to say something different about whether independent expenditures can ever corrupt. That's the case of Caperton against Massey Coal Company, were coal executives spent three million dollars to get a justice elected to the West Virginia Supreme Court. And there, Justice Kennedy says, well that independent spending can give rise to a debt of obligation that's so profound that that justice should not sit on a case involving the coal company. And it's a little bit odd that the suggestion is we can trust politicians more than we can trust judges, particularly coming from a, a judge himself.

But also odd is that Justice Kennedy was the only justice in the majority in both cases. That is, he joined the court's four more liberal members in the Caperton case and the court's four more conservative members in the Citizens United case.

BROOKE GLADSTONE:

Any chance then that when the Montana case comes to the Supreme Court, he might swing again?

ADAM LIPTAK:

I think it's highly unlikely. Justice Kennedy has over the decades developed a very strong libertarian view of the First Amendment, so I don't see him moving. But stranger things have happened. I think the more likely result is a quick unsigned majority opinion and a strenuous dissent.

BROOKE GLADSTONE:

This is Citizens United[‘s] inaugural campaign. How do you think its playing out in the public mind?

ADAM LIPTAK:

I think the justices have been surprised by just how deeply and widely unpopular the decision once. I'm not sure how much they care.

[BROOKE LAUGHS]

It came in a moment in time when everyone was focused on the Voting Rights Act, and the court, in what some people characterized as a — as a statesman-like move, pulled back and didn't strike down a key part of the Voting Rights Act. And I think that several justices thought that by comparison campaign finance law, sort of technical, sort of boring, no one's gonna pay attention. And yet, they failed to understand that the idea of extending corporations' free speech rights was going to be deeply, deeply unpopular.

BROOKE GLADSTONE:

So do you see a, a legislative remedy, if I may use that word, to Citizens United?

ADAM LIPTAK:

Well, there's a very important one that lots of people acknowledge and that would be perfectly consistent with Citizens United, which is more disclosure. People blame Citizens United for a lot of things, including secret campaign spending? But you can't blame Citizens United for that. Citizens United eight to one upheld disclosure requirements. The reason there's not more disclosure is because legislatures have chosen not to pass more strict disclosure laws. But if those laws were passed, there's little question that the Citizens United Court would uphold them. So disclosure may well be the answer.

BROOKE GLADSTONE:

Adam, thank you very much.

ADAM LIPTAK:

Great to be here, Brooke.

BROOKE GLADSTONE:

Adam Liptak is the Supreme Court reporter for The New York Times.