Why is MSSA
consorting with evil corporations?
Of Copper Kings and Mooning
Opinion and Information
by Gary Marbut, president
Montana Shooting Sports Association
January 10, 2012
"Why is MSSA consorting with evil corporations?" I get this
question in response to MSSA's participation in the lawsuit over
corporate spending for free speech that was recently decided
adversely by the Montana Supreme Court.
The very short answer is, because MSSA is a corporation, albeit a
very small nonprofit corporation. We are not Exxon, Bank of
America or General Motors. We don't get government
bailouts. But we ARE a type of corporation.
I realize that is not a wholly satisfactory answer, so please bear
with me while I elaborate.
MSSA is an association of politically-interested and like-minded
individuals founded with the specific mission of being an active
player in the political arena. This is our mission.
Our members expect us to spend their dues to effect beneficial
political changes, including delivering candidates to the
Legislature who will support issues of interest to MSSA members.
Because MSSA has availed itself of the option to structure its
association as a nonprofit corporation, current Montana law
prohibits MSSA from spending members' dues in independent
expenditures to help elect favored candidates to public
office. I'll speak more about the history of this law later.
The U.S. Supreme Court (USSC) examined the question of corporate
expenditures in elections in the case Citizens United v. Federal
Elections Commission. Remember that the Bill of Rights
reserves certain rights to the people from government
interference. The First Amendment mandates that "congress
shall make no law" concerning freedom of speech. First
Amendment reservations of individual liberty have been held by the
USSC to apply to state and local governments and governmental
actors via the Fourteenth Amendment. Further, the type of
speech that has long been most highly prized and protected by the
Supreme Court, and properly so, is political speech.
Political speech certainly includes spending money to speak, such
as renting a bullhorn or placing a paid advertisement.
In Citizens United the Supreme Court held, in very short, that the
political free speech rights belonging to members of a corporation
follow through to the members' association as a corporation.
This rationale' fits MSSA to a T.
Meanwhile, Montana has a law, enacted in 1912, prohibiting
corporations from spending any money at all for political
advocacy. This law is reputed to have its roots in breaking
up the corrupt stranglehold the "Copper Kings" once had on the
political processes of Montana. While it is true that
historians record a lot of political corruption by the Copper
Kings, linking this to corporations is probably a mistake.
Those known as the Copper Kings were the Butte mining barons
William Clark, Marcus Daly, and Augustus Heinze. According
to historical accounts, all of them invested heavily in political
influence, "buying" legislators and judges as needed. Clark,
according to accepted history, even "bought" a Montana seat in the
U.S. Senate. However, these mining barons had huge personal
fortunes. According to historians, the money Clark spent to
bribe legislators into electing him to the U.S. Senate came out of
his own pocket, bribes he could certainly afford from his personal
fortune. Although Clark owned corporations, no evidence is
presented that Clark's political bribes came from his
corporations, but almost certainly came from his own pockets.
The Copper Kings DID own corporations that were politically
influential in those times, the newspapers. Those still
exist. The newspaper corporations owned by the Copper Kings
were inherited by the Anaconda Company, and then eventually sold
to Lee Enterprises, which still owns most of the daily papers in
Montana. It is fair to say that the last intact, residual
political influence of Copper Kings that exists in Montana today
is Lee Enterprises.
Those who worked in the late 1800s and early 1900s to throw off
the admitted yoke of the Copper Kings conceived the idea of
limiting the Copper Kings' influence by prohibiting the effect of
Copper King money in politics. However, there were problems
with that idea. The Copper Kings' corporate-owned newspapers
legitimately claimed freedom of the press enshrined in the First
Amendment, so that regulatory avenue was unavailable.
Because individual freedom of speech is protected by the First
Amendment, it would have been constitutionally impermissible to
prohibit individuals, including individual Copper Kings, from
spending their personal money on politics.
So, as a fall-back position, the drafters of the 1912 law laid the
corruption at the feet of "evil corporations" and enacted the law
that exists today prohibiting spending by corporations to affect
politics. Knowing this history, it is evident that
corporations became scapegoats, at least to some extent.
Since this mythical lore has been handed down largely
unchallenged, the scapegoating continues today.
When the USSC delivered its Citizens United decision, MSSA learned
from state authorities that the Montana rules for spending by MSSA
would be not revised to comply with Citizens United.
Absolutely not, we were told. The authorities in Montana
still remember the Copper Kings (even if incorrectly), state
officials claim, and still see corporations as certainly poised to
have evil influence on the political process.
Because of the refusal by Montana authorities to comply with the
USSC's Citizens United decision, MSSA joined others in challenging
the 1912 prohibition. MSSA joined because that century-old
prohibition was poorly aimed at the real target then, and because
it applies even less now, a century later when the Copper Kings
and their effects on Montana are long gone.
State District Court Judge Jeffrey Sherlock agreed with MSSA and
its partner plaintiffs that Montana must comply with the USSC
mandate in Citizens United. His decision was appealed to the
Montana Supreme Court (MSC), which reversed the District Court
decision and upheld the 1912 ban on corporate spending.
The decision by the MSC was a 5-2 decision, and the Opinion was
written by Chief Justice Mike McGrath, formerly Attorney General
of Montana and before that County Attorney for Lewis and Clark
Fortunately for MSSA but unfortunately for Montana, Chief Justice
McGrath's Opinion disappoints many opinion readers with the
light-weight quality of the rationale' he uses to justify the MSC
First, McGrath relies almost entirely on the historically-flawed
lore that the Copper Kings' corrupt influence on Montana was the
influence of corporations, a theory not supported in the
historical record. The Copper Kings did assert extraordinary
influence on Montana politics at the time, and most would agree to
name the style of their influence as political corruption.
However to take the next step and attribute this corruption
generically to corporations is where the logic fails history and
Second, although McGrath claims that Montana should go its own way
concerning corporate spending for politics, scapegoating the
Copper Kings as the reason amounts to shooting at mice when a bull
elk standing 50 yards away. Neither the words "Tenth
Amendment" nor "states' rights" appear in McGrath's Opinion.
McGrath also fails to mount the appealing argument made by
defendants in McDonald v. Chicago (Second Amendment applies to
state and local governments), the argument that states are
intended to be "laboratories of democracy" to develop policies
suitable for their people, culture and conditions, and ought to be
left alone to do their own thing.
Given the tsunami of states' rights sympathy that is sweeping the
Nation (e.g., the Montana Firearms Freedom Act, cloned by nearly
30 other states), it is a head-scratching wonder that McGrath
completely avoids any states' rights argument while asserting that
Montana must simply go its own way in prohibiting corporate
spending, thumbing his nose at the USSC.
In relying on such light-weight rationale', McGrath has doomed his
Opinion to be disrespected generally and thoroughly rebuked by the
USSC, and has doomed the MSC and Montana to become the butt of
much humor in knowledgeable legal circles.
Some wish to spin the MSC heroically as standing up to big
corporations and to the USSC - a David and Goliath analogy.
Unfortunately in this analogy, David neglected to bring his sling
and stone, and only mooned Goliath. Unfortunately for David
(but fortunately for MSSA), this approach is not likely to impress
Goliath or have a happy ending for David. Meanwhile, the
taxpayers of Montana will be saddled with a whopping legal bill to
pay for this juvenile mooning exercise and its aftermath.
So, back to the original question: "Why is MSSA
consorting with evil corporations?" MSSA is a homegrown
association of free individuals claiming their
constitutionally-reserved right to freedom of speech, and
incidentally assembled as a nonprofit corporation. We claim
the approved and legitimate processes of democracy. That we
have paid the Montana Secretary of State $22 to be able to group
together as a nonprofit corporation does not make us "evil" and
that should make no difference whatsoever about our ability to
exercise political free speech as an association of individuals.
The prohibition on governmental interference in free political
speech contained in the First Amendment, "congress shall make no
law," was mandated to protect entities exactly like MSSA and its
members. If the Montana Supreme Court hopes to be taken
seriously, it needs to get over its monster-under-the-bed excuse
for governmental power and recognize that the people have imposed
very real restraints on government action in their Constitution,
for very good reasons.