Montana is prettier, emptier and, if you catch it at the wrong time, colder than most places in the United States. But it is still part of the United States—even if the state Supreme Court wants to pretend that it isn’t.
Five of the state court’s seven justices recently expressed their disapproval of the U.S. Supreme Court’s Citizens United decision by announcing that, due to Montana’s special history, Citizens United does not apply beneath the famous Big Sky.
There is no chance that this position will stand. There will be no need to send in federal troops, notwithstanding an old saying, dating back to the Gold Rush of the 1860s and 1870s, that “the Confederate Army never surrendered; it just retreated to Montana.” But the state court’s action, and the encouraging response it received from two members of the U.S. Supreme Court, is still disturbing.
Montana is one of a handful of states that have a highly developed sense of being unique by virtue of geography, history and local culture. I know Montana’s perspective because I lived there for nearly seven years while I went to college and started my working career.
In 1972, shortly before I arrived, Montana wrote itself a brand-new constitution, filled with cutting-edge innovations such as guaranteeing the public’s right to attend government meetings and see government documents. Montana has a deep-seated interest in maintaining clean, responsive and open government.
This is largely a reaction to the state’s political history of corruption and exploitation at the hands of out-of-state corporate interests, which has gradually enlarged to a sometimes self-defeating mythology. Such corporate interests ran rampant in the early 20th century, most notably in the case of warring “copper kings,” whose feuds ultimately resolved in the consolidation of power by the Anaconda Copper Company. Anaconda controlled most of the state’s leading newspapers, and many facets of state and local government, until the late 1950s.
Steve Bullock, Montana’s Democratic Attorney General, told NPR, “Our legislature, our judges, down to the local county assessors, were almost bought and paid for.” Mark Twain even said that, “you know, the amount of money coming into Montana makes the smell of corruption almost sweet.”
In response, Montana legislators passed the state’s Corrupt Practices Act in 1912. The law prohibited corporations from spending money to promote or attack political candi-dates, a position that Citizens United overturned by holding that corporations and labor unions have a free-speech right to spend their own money on political advertising.
Of course, Montana being what it was in 1912, there were ulterior motives for the passage of the Corrupt Practices Act. By that point, the state’s most powerful interests had gained control of Montana’s politics and newspapers. They did not need to spend money on political advertising; their editors, who ran the newspapers I later worked for, hyped or killed the stories they were told to hype or kill. The Corrupt Practices Act was designed to entrench Montana’s then-existing power structure.
But the Montana Supreme Court cited the purportedly pure goals of the 1912 law when it took the position–one that it knew full well it had no power to take–that Citizens United has no force within Montana’s boundaries. The Montana justices, in a 5-2 decision, argued that the state law somehow superseded the federal decision.
It is as though Mississippi had rejected Brown v. Board of Education, or as if California had ignored Loving v. Virginia (ending race-based restrictions on marriage). Imagine if the Florida Supreme Court had contended that the U.S. Supreme Court had no authority to rule on Florida’s election recount in 2000’s Bush v. Gore.
The justices in Washington rightly stayed the Montana court’s decision. But two justices, Ruth Bader Ginsberg and Stephen Breyer, foolishly encouraged the state’s position by arguing that the Montana case is a suitable vehicle through which the U.S. Supreme Court might revisit Citizens United, a decision from which both Ginsberg and Breyer dissented.
Would they feel equally disposed to review a state Supreme Court decision holding that Roe v. Wade is of no force and effect? I highly doubt it.
Reversal of the Montana ruling is a foregone conclusion. Even the Montana judges know this. Montana Justice James C. Nelson was clear about his personal issues with Citizens United in his dissent, but went on to write, “Like it or not, Citizens United is the law of the land as regards corporate political speech. There is no ‘Montana exception.’”
The question, then, is whether the Montana judges can get another shot at the Supreme Court simply by brazenly defying a two-year-old holding. It is noteworthy that Justice Sonia Sotomayor, who dissented in Citizens United along with Ginsberg and Breyer, did not join Breyer’s memorandum calling for a rehearing. Neither did Justice Elena Kagan, who was not yet on the court when it decided the case.
A rehearing would be exactly the wrong response to Montana’s defiance. The right response would be a summary reversal.
Assuming none of the justices who were in the Citizens United majority are inclined to revisit the issue, both Sotomayor and Kagan would have to join Breyer and Ginsberg in voting to hear the Montana case in order to get it before the court. Here’s hoping at least one of them has enough sense not to do so. If we start inviting state courts to disregard Supreme Court holdings, there is no telling where that path could lead, other than “nowhere good.”
I have a lot of affection for Montana and its residents, but the state is not nearly as special, nor as oppressed or vulnerable to oppression, as some of its people think it is. In the 30 years since I left Montana, its neighbor to the west, Idaho, has developed a significant technology industry. To the east, South Dakota has made itself a banking center, and North Dakota has become headquarters to an energy boom. What industry has Montana itself developed since I departed? Not much, except electronic gambling. Almost every bar in the state (this is a state with an amazing ratio of bars to people) has video poker and similar machines.
That’s not oppression by out-of-state money. That’s a symptom of a state that is too busy pitying itself to fully participate in the 21st century. I visit once or twice a year, and I feel sad for this place that I still care about.
Out-of-state money doesn’t vote in Montana elections. It buys ads, as it does everywhere else, and those ads represent nothing more than political speech. For good or ill, Montanans will decide their own elections and their own fate. But Montana is still one of the 50 states, and the U.S. Supreme Court has legal jurisdiction over all 50 of them.
Welcome back to the fold, Montanans.
Larry Elkin, president of Palisades Hudson Financial Group, has a Univer-sity of Montana journalism degree and an MBA from New York University, has worked as an Associated Press reporter and editor covering government, business and legal affairs with assignments in Helena, Mont.; Albany, N.Y.; Washington, D.C.; and in New York City’s federal courts in Brooklyn and Manhattan.