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Once Upon a Time in the West: Citizens United, Caperton, and the War of the Copper Kings


Larry Howell


University of Montana School of Law

March 3, 2012

Montana Law Review, Vol. 73 (2012)

Abstract:     
Recognized by even its strong supporters as “one of the most divisive decisions” by the United States Supreme Court in years, Citizens United v. FEC was met with a wave of criticism and predictions of dire consequences for the country’s political system. By holding that corporations and unions have the right under the free-speech clause of the First Amendment to make unlimited independent expenditures in campaigns for elected office, the Supreme Court not only struck down a federal statute and overturned two of its own key campaign-finance decisions, it also effectively struck down laws in 24 states that had long banned or restricted independent corporate expenditures.

Or at least it effectively struck down laws in 23 of them. One state has refused to give up on its century-old ban on corporate campaign expenditures: “Only Montana,” as the Washington Post reported, “still wages a lonely court battle to maintain the ban.” Montana’s lonely struggle became national news on December 30, 2011, when the Montana Supreme Court upheld a Montana statute prohibiting corporate expenditures that a lower court, citing Citizens United, had declared unconstitutional in early 2011. That case, American Tradition Partnership, Inc. v. Bullock, will almost certainly be reviewed by the United States Supreme Court, which stayed the Montana Supreme Court’s decision on February 17, 2012, at the request of the corporations challenging the statute, who in late March filed a petition for certiorari.

Montana’s continued effort to restrict independent corporate expenditures in campaigns for elected office is rooted in the State’s history of corrupt elections during the War of the Copper Kings, which took place at the turn of the twentieth century. At the time, the State was infamous for what one historian described as the “massive corruption of the machinery of government” that resulted from the willingness of three mining barons, or “copper kings,” to spend millions of dollars in their battle to control both Montana’s vast copper deposits and its government. That corruption led fed-up Montana voters to enact by citizen initiative the State’s first ban on corporate campaign expenditures, the Corrupt Practices Act of 1912, which was the precursor to the statute at issue in Western Tradition. One hundred years later, that same history of corruption, according to the Montana Supreme Court, provided the compelling interest necessary to uphold the Montana statute even though Citizens United struck down a similar federal statute as facially unconstitutional.

This article first details the extent of that corruption, which was so pervasive that President Theodore Roosevelt’s Solicitor General described Montana as a place “where open confessions of sales of political and even judicial influence were lightly looked upon.” The article details three examples that the Roosevelt Administration certainly had in mind. The first involved the election of copper king William Andrews Clark to the United States Senate in 1899. Clark won his election through a brazen bribery campaign that ended up being the focus of an investigation by the United States Senate, which forced Clark to resign a few months after taking office. The other two examples concern corrupt district judges elected in Butte in 1900, Edward Harney and William Clancy, who were widely believed to have been “bought and paid for” by another copper king, F. Augustus Heinze, although direct bribery was never proven. Their numerous biased rulings in Heinze’s favor in some of the most high-stakes litigation in the United States had substantial impacts on the state and the nation. In fact, the results of Clancy’s rulings in particular are still felt in Montana today in significant ways, not the least of which was the passage of Montana’s Corrupt Practices Act.

The article next analyzes Citizens United and how its sweeping conclusions about independent campaign expenditures and corruption conflict with the way the Court treated those same expenditures a year earlier in Caperton v. A.T. Massey Coal Co., which involved a judicial election. The article then discusses American Tradition Partnership, in which Montana successfully argued that Citizens United did not invalidate Montana’s 100-year-old ban on independent corporate expenditures because the law was enacted directly by citizens trying to take their state back from the corporations that controlled it.

Surprising many observers, the Montana Supreme Court upheld the statute, thus giving the U.S. Supreme Court a chance to reconsider its ill-advised decision in Citizens United. At least two justices on the Court appear willing to do just that. When the Court granted American Tradition’s application for a stay of the Montana decision in early 2012, Justices Ginsburg and Breyer wrote that based on “Montana’s experience, and experience elsewhere since this Court’s decision,” the justices should revisit Citizens United “in light of the huge sums currently deployed to buy candidates’ allegiance.”

Absent a confession of error by at least one of their colleagues, not even Justices Ginsburg and Breyer apparently think the Montana Supreme Court’s decision can stand. Although the decision explains in detail why it does not conflict with Citizens United because of the state’s unparalleled history of elections corrupted by corporate interests, Justices Ginsburg and Breyer indicated they were not persuaded. They supported the stay because “lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.” Therefore, unless at least one justice reverses course, Montana’s law cannot survive the sweeping language of Citizens United.

However, even if the Court holds the law is unconstitutional when applied to partisan political elections of legislators and executive branch officials, this article argues that the ban on independent corporate expenditures should be upheld when applied to judicial elections, which all but 11 states require in some form. Those elections, which do not exist at the federal level, are different in fundamental and obvious ways from elections for legislative and executive branch positions. The Court implicitly recognized as much in Caperton, decided the year before Citizens United, when it held that large independent campaign expenditures on behalf of judicial candidates pose a “serious, objective risk of actual bias” in favor of the person or entity making the expenditure. Yet the majority opinion in Citizens United only referenced Caperton in one cursory, four-sentence paragraph in which it failed to draw any distinction between judicial and political elections.

The logical way to reconcile the two cases is to recognize that because judicial elections are fundamentally different from political elections, states should be allowed to shield them from the risk of corruption posed by unlimited independent corporate expenditures. The sole purpose of corporate campaign expenditures, given the self-interested nature of corporations, is to support candidates perceived as sympathetic to the financial or political interests of the corporation. In fact, corporate self-interest represents a type of “corruption” — a disregard of the public good — that the Framers of the Constitution not only recognized as “a central threat to government,” but one “they believed would eventually founder America.” Therefore, even if the Supreme Court strikes down Montana’s Corrupt Practices Act as a whole, the Court should use American Tradition Partnership to revisit the issue of independent corporate expenditures in judicial elections.

Number of Pages in PDF File: 36

Keywords: Citizens United, Caperton, independent corporate expenditure, independent expenditure, judicial election, Western Tradition Partnership, War of the Copper Kings, copper king, William Andrews Clark, F. Augustus Heinze, Montana Supreme Court, corrupt practices

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Date posted: December 3, 2011 ; Last revised: April 27, 2012

Suggested Citation

Howell, Larry, Once Upon a Time in the West: Citizens United, Caperton, and the War of the Copper Kings (March 3, 2012). Montana Law Review, Vol. 73 (2012). Available at SSRN: http://ssrn.com/abstract=1966249

Contact Information

Larry Howell (Contact Author)
University of Montana School of Law ( email )
Missoula, MT 59812-0002
United States
406-243-5286 (Phone)
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