But by a 5-2 margin, Montana’s high court determined that the state law survived “strict scrutiny” because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United. In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.” Noting that, back in the last Gilded Age, Montana’s wealthy “Copper Kings” bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.
McGrath lays it out this way: “The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections?” The majority went out of its way to note that unlimited campaign spending on judicial elections is also having a profoundly damaging effect on judicial integrity all around the country.
I entirely agree. It’s an interesting legal approach to focus on the actual history rather than ridiculous hypotheticals.
The plantiff is hilarious:
Thus Western Tradition Partnership, the lead plaintiff in the case, merits extra special scorn from the court for circulating a fundraising brochure that said, “If you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you made this program possible.” The majority openly accuses WTP of being responsible for “a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements.” The Montana majority, in other words, knows exactly what Justice Kennedy seems to have missed: That corruption is corruption regardless of its packaging, and that it rarely comes with a detailed disclosure label.