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
(1,523 words)

"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 County (Helena).

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 position.

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 fails McGrath.

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.