Among the more memorable moments from President Barack Obama’s first State of the Union address was his direct criticism of a Supreme Court decision the previous week relaxing restrictions on political spending by corporations and unions. Rebuking Supreme Court justices for a decision face-to-face is a highly unusual move for a president, but Obama’s reaction underscores just how polarizing and momentous the ruling has the potential to be.
The Citizens United v. Federal Election Commission decision overturns court precedent on corporate spending in politics, and potentially makes bans on such spending in states throughout the country, unconstitutional. In Montana, that ban has stood in place for nearly a century and its future now appears uncertain.
Supporters of the decision, praising the conservative majority, saw it as a victory that protects free speech rights under the First Amendment. Critics of the ruling, broadly comprised of those on the left, lamented how it confers upon corporations rights given to people, and predicted it would only worsen the problem of special interest money in American politics.
Montana Secretary of State Linda McCulloch, a Democrat, said the decision could, “create a cattle call for corruption and pollute our election process by threatening decent, long-held campaign finance laws in Montana.” Montana Attorney General Steve Bullock, a Democrat who filed a brief with 23 other states asking the court to uphold the restrictions in place on political spending, said the decision was “disappointing.”
But as the dust begins to settle following the Citizens United decision, its implications for political spending aren’t as easily categorized as bad for the left, and good for the right. In Montana, where a relatively small amount of money can have a big impact on an election, the results can be more difficult to discern. And that’s what many interests throughout the state, from businesses to unions to political observers, are currently trying to figure out.
“There are a lot of people scratching their heads,” said Edwin Bender, executive director of the National Institute on Money in State Politics, the Helena-based organization that runs the Web site, followthemoney.org. “The balance (of political spending) is in favor of non-individual donors: Companies give a lot of money.”
“This is simply another way for them to do what they’re already doing,” Bender added. “Because costs are so low in Montana, whether they even need to do it is a question.”
What the Citizens United decision changed is where corporations, trade organizations, unions and nonprofits were previously prohibited from funding independent expenditure campaigns directly out of their profits or treasuries, they can now do so in unlimited amounts. While these corporations and groups are still limited in how much they can directly give to candidates, they are now free to spend as much as they wish to advocate for the candidates and causes they support – and against those candidates and causes they oppose. (Unions and corporations can still form Political Action Committees to give directly to candidates.)
But Bender believes corporations and unions already make good use of their free speech rights, and in a state as small as Montana, should some corporate entity dump a million dollars into a particular race, it could even reflect poorly on the candidate or cause and become political fodder, since such spending must still be publicly disclosed. Given the streak of angry populism currently running through American politics, that type of spending could prove counterproductive.
“Political consultants will be looking at independent expenditures in a different way,” he said. “As with all things political, there’s an upside and there’s going to be a downside.”
James Lopach, chair of the political science department at the University of Montana, also believes corporations may be reluctant to wade more heavily into electoral politics in the Big Sky State.
“In Montana, where there are very few large corporations,” Lopach said, “a corporation would be hesitant to be out front in political ads.”
Like Bender, Lopach thinks it likely corporations and unions will still spend on politics through the means available before the court’s decision.
“They will continue to participate through their own PACs or trade associations,” he added.
Lopach praised the court decision overall as “an important statement of the centrality of political speech in the First Amendment and that we should be very hesitant to limit it.” But he noted that the ruling does make Montana’s ban unconstitutional, and said it’s only a matter of time before the law is either challenged in court, or Bullock simply opts not to enforce it.
As for where that challenge to Montana’s ban might come from, Webb Brown, president of the Montana Chamber of Commerce, isn’t sure, but believes it’s imminent.
“It seems to us like it’s pretty clear that the Montana statute is on shaky ground,” Brown said. “I can’t imagine that it would not be challenged at some point in the next few months.”
The Chamber’s board hasn’t yet decided if it will take legal action against Montana’s ban or an individual business will do so, Brown said, adding that such a challenge would almost certainly happen by the November elections. But he also believes reaction to the court’s decision has been overblown, and that its impact, particularly in Montana where there are few large corporations, may be more limited than anticipated given the public outcry following the ruling.
“I don’t think the screams of agony we hear are appropriately placed,” Brown said. “I just don’t agree with that alarm, that hue and cry that we’ve heard from some on the left.”
Though Brown’s reaction contrasts rather sharply with the executive secretary of the Montana AFL-CIO.
“This is a bad, bad, bad decision,” Jim McGarvey said. “This will hurt everybody, especially small business and ultimately unions.”
While the broad perception is that the court decision frees unions and corporations to spend as they please on politics, McGarvey said, prior court decisions have limited how unions can spend membership dues, particularly with respect to political giving, leaving unions at a deep disadvantage to corporations that may now spend from their treasuries.
“This is just going to compound and help special interests,” he added. “Unions might be perceived to be special interests, but we’re interested in people being able to have sustainable jobs.”
The result of the decision, McGarvey said, will be a shift in influence toward corporations, taking Montana one step back to the early 1900s, when copper king William Clark bribed the state Legislature to gain a U.S. Senate seat.
“W.A. Clark might have been able to buy into the Senate but all the unions stacked on top of each other couldn’t do that and wouldn’t do that,” he added. “This opens up the floodgates.”