Sunday, January 08, 2012

Passing thought #1: One is not the same as the other

I'm sure that you're already aware that the Montana Supreme Court recently upheld a 100-year-old state law that limits corporate donations to political campaigns, thus directly rejecting the notorious Citizens United decision.

A number of observers have praised the decision as demonstrating the depth of public opposition to Citizens United while insisting that the legal result will simply be that SCOTUS will strike down the Montana decision on appeal, leaving that legal landscape unchanged.

The thought here is that while I think that more likely than not, I'm not as convinced of the zero effect as some other are. The Montana case can be differentiated from CitUnit on at least two grounds: One is that this case refers to a state law, not a federal law, and the general tradition (which I emphasize for what I hope would be obvious reasons) has been to let states regulate their own elections, with the feds generally stepping in only when some identifiable group of voters was being denied access to the ballot box. (That being the legitimate part of the reason why SCOTUS said that its other notorious decision of recent times, Bush v. Gore in 2000, was not to be used as precedent.)

The other, though, is the more important one: Part of the, um, "logic" of CitUnit was the claim that evidence of the corrupting influence of money was lacking. The Montana decision was evidence-based, citing the history of mining interests in Montana, the interests whose actions lead to the ban, as proof. To overturn the ruling, SCOTUS would have to either deny that history or deny the relevance of facts - not that either of those is beyond this Court.

So while I don't see the Court reversing itself on CitUnit, as lovely as that would be, I do see some chance of the decision being in some way modified to allow some controls and or least a requirement for transparency.

Footnote A: As I again expect you know but is still worth pointing out, the dissenters in the Montana case agreed with pretty much everything the majority said, holding only that CitUnit unhappily required the law be overturned. One of them, Justice James Nelson, called corporate personhood "an affront to the inviolable dignity of our species."

Footnote B: I've written some stuff on corporate personhood, including these two on Glenn Greenwald's seriously wrong endorsement of CitUnit.

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