MONTANA LAW REVIEW

PDF VERSION

By Larry Howell*

 

He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell.

—Mark Twain¹

 

[T]he Copper Kings are a long time gone to their tombs.

—District Judge Jeffrey Sherlock²

 

I. INTRODUCTION

Recognized by even its strong supporters as “one of the most divisive decisions” by the United States Supreme Court in years,³ Citizens United v. FEC⁴ was met with a wave of criticism and predictions of dire consequences for the country’s political system. The unusually harsh reaction began in the dissenting opinion by four justices, who bluntly stated that the decision “threatens to undermine the integrity of elected institutions across the Nation,” as well as “do damage” to the legitimacy of the Supreme Court as an institution.⁵

President Barack Obama amplified that theme during his 2010 State of the Union address when he described Citizens United as pro-corporate judicial activism while six justices, including three who signed the 5–4 majority opinion,⁶ sat in the audience front and center. “With all due deference to separation of powers,” Obama told the Justices, the Congress, and the Nation, “last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”⁷ Obama’s unusually direct criticism received even more attention because Justice Samuel A. Alito Jr., who voted with the majority in Citizens United, reacted by vigorously shaking his head and muttering “not true, not true” while millions read his lips at home.⁸

While the accuracy of the President’s floodgates prediction, particularly concerning foreign corporations, cannot be fully verified until the 2012 election campaigns heat up next year, no one can dispute the truth of his statement that Citizens United overturned decades of settled law. By holding that corporations and unions have the right under the free-speech clause of the First Amendment to make unlimited independent expenditures in campaigns for elected office, the Supreme Court not only struck down a federal statute⁹ and overturned two of its own key campaign-finance decisions,¹⁰ it also effectively struck down laws in 24 states that had long banned or restricted independent corporate expenditures.¹¹

Or at least it effectively struck down laws in 23 of them. One state has refused to give up on its century-old ban on corporate campaign expenditures and is instead asking its own supreme court to revive the statute that a lower court, citing Citizens United, declared unconstitutional in early 2011.¹² “Only Montana,” as the Washington Post reported, “still wages a lonely court battle to maintain the ban.”¹³ That court case, Western Tradition Partnership, Inc. v. Attorney General,¹⁴ is pending in the Montana Supreme Court, which heard oral argument on September 21, 2011, and will likely decide the case before the end of the year.

Montana’s continued fight to restrict independent corporate expenditures in campaigns for elected office is rooted in the State’s history of corrupt elections during the War of the Copper Kings, which took place at the turn of the twentieth century.¹⁵ At the time, the State was infamous for what historian K. Ross Toole described as the “massive corruption of the machinery of government”¹⁶ that resulted from the willingness of three mining barons, or “copper kings,” to spend millions of dollars in their battle to control both Montana’s vast copper deposits and its government.¹⁷ That corruption led fed-up Montana voters to enact by citizen initiative the State’s first ban on corporate campaign expenditures, the Corrupt Practices Act of 1912,¹⁸ which was the precursor to the statute at issue in Western Tradition.¹⁹ One hundred years later, that same history of corruption, according to Montana’s Attorney General Steve Bullock,²⁰ provides the compelling interest necessary for the Montana Supreme Court to uphold the Montana statute even after Citizens United struck down a similar federal statute as facially unconstitutional.²¹ As one opposing amicus brief in Western Tradition phrased it, the Attorney General is “seeking a ‘Montana Exception’ to the Free Speech Clause” based on this State’s unique history of corrupt elections a century ago.²²

This article first details the extent of that corruption, which was so pervasive that in 1908, President Theodore Roosevelt’s Solicitor General, echoing Mark Twain,²³ described Montana as a place “where open confessions of sales of political and even judicial influence were lightly looked upon.”²⁴ The article describes three examples that the Solicitor General likely had in mind. The first involved the election of copper king William Andrews Clark to the U.S. Senate in 1899. Clark won his election through a brazen bribery campaign that ended up being the focus of an investigation by the U.S. Senate, which forced Clark to resign a few months after taking office.²⁵ The other two examples concern corrupt district judges elected in Butte in 1900, Edward Harney and William Clancy, who had been “bought and paid for” by another copper king, F. Augustus Heinze.²⁶ Their numerous biased rulings in Heinze’s favor in some of the most high-stakes litigation in the United States had substantial impacts on the State and the Nation. In fact, the results of Clancy’s rulings in particular are still felt in Montana today in significant ways, not the least of which was the passage of Montana’s Corrupt Practices Act.²⁷

The article next analyzes Citizens United and how its sweeping conclusions about independent campaign expenditures and corruption conflict with the way the Court treated those same expenditures a year earlier in Caperton v. A.T. Massey Coal Company,²⁸ which involved a judicial election. The article then discusses the Western Tradition Partnership case pending before the Montana Supreme Court. In that case, the Montana Attorney General argues that Citizens United does not invalidate Montana’s 100-year-old ban on independent corporate expenditures because the law was originally enacted directly by Montanans trying to take their state back from the corporations that had seized control of it.²⁹ The Montana Supreme Court might uphold the statute, thus giving the U.S. Supreme Court a chance to reconsider its ill-advised decision in Citizens United. But the more likely outcome, despite Montana’s unique past, is that Montana’s law, like those of the 23 states with similar laws,³⁰ cannot survive the sweeping language of Citizens United, at least when applied to partisan political elections of legislators and executive branch officials.

However, this article then explains why the ban on independent corporate expenditures is constitutional when applied to judicial elections. Those elections, which all but 11 states require in some form,³¹ are different in fundamental and obvious ways from elections for legislative and executive branch positions. The U.S. Supreme Court implicitly recognized as much in Caperton, decided the year before Citizens United, when it held that large independent campaign expenditures on behalf of judicial candidates pose a “serious, objective risk of actual bias”³² and “offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true” in deciding cases important to the person or entity making the expenditure.³³ Yet the majority opinion in Citizens United only referenced Caperton in one cursory, four-sentence paragraph in which it failed to draw any distinction between judicial and political elections.³⁴

The only logical way to reconcile Caperton and Citizens United is to recognize that because judicial elections, which do not exist in the federal system, are fundamentally different from political elections, states should be allowed to shield them from the risk of corruption posed by unlimited independent corporate expenditures. The sole purpose of corporate donations, given the nature of corporations, is to support candidates perceived as sympathetic to the political and financial interests of the corporation.

Therefore, regardless of how it rules on the constitutionality of Montana’s Corrupt Practices Act as a whole, the Montana Supreme Court should separately uphold the constitutionality of the law’s prohibition on independent corporate expenditures in judicial elections. That would give the U.S. Supreme Court the opportunity to reconsider at least that aspect of Citizens United.

II. “THE MONTANA SITUATION”

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

—Justice Anthony M. Kennedy ³⁵

In the late nineteenth century, copper became perhaps the most important strategic mineral in the world, as the rapid spread of electricity and telephones led demand to skyrocket.³⁶ As a result, the rough-and-tumble frontier mining town of Butte, Montana, which sat on top of almost limitless deposits of copper ore, became known as “the richest hill on earth.”³⁷ Those underground riches made Montana, and Butte in particular, the site of one of the more corrupt and colorful battles of industrial titans the country has ever seen. The War of the Copper Kings was fought on various levels: by hundreds of miners below ground with fire hoses, slaked lime, and even dynamite;³⁸ by scores of lawyers³⁹ in court with lawsuits, injunctions, appeals, and writs;⁴⁰ and most importantly by corporate officers and their bagmen with seemingly endless amounts of cash to buy votes, newspapers, and politicians.⁴¹

A. Senator William Andrews Clark

The 1899 election of copper king William Andrews Clark to the U.S. Senate is the most notorious example of Montana’s political corruption, even drawing the critical eye of Mark Twain, who called him “a shame to the American nation.”⁴² One historian described events surrounding Clark’s election as “one of the most remarkable, most sordid political spectacles in the history of the United States.”⁴³ Clark was one of the richest men in America at the time, reputedly worth $50 million in 1900, and was arguably Montana’s most influential citizen, having served as presiding officer at both the 1884 and 1889 Montana constitutional conventions.⁴⁴ Yet his most fervent desire was to become a member of the United States Senate.⁴⁵ To satisfy that desire, Clark reportedly was willing to spend as much as a million dollars of his fortune to bribe state legislators, who elected senators until adoption of the Seventeenth Amendment in 1913, at the rate of up to $10,000 per vote.⁴⁶ When later asked to justify his bribery, he reportedly said: “I never bought a man who wasn’t for sale.”⁴⁷

Clark prevailed despite widespread public knowledge of the bribery scheme. But it took him many more rounds of voting than expected; late in the game he had to raise the amount offered to as much as $50,000 per legislator.⁴⁸ In the end, Clark may have paid more than $430,000 for 47 legislators’ votes, and he offered another $200,000 to 13 more who refused the bribes.⁴⁹ Clark’s celebration was short-lived, however, as complaints from anti-Clark Montanans led the U.S. Senate Committee on Privileges and Elections to hold hearings from January through April 1900, investigating the manner by which Clark had been elected.⁵⁰ Those legislators who took Clark’s money were subpoenaed to explain in person before the Committee how they had suddenly acquired such wealth. Many “severely embarrassed themselves and their home state” in the process,⁵¹ including one who denounced his own prior sworn statement that he had been bribed as a “pack of dam [sic] lies.”⁵² The national press was appalled by the sad state of affairs in Montana. As one reporter noted, the hearings had shown what “not overly scrupulous multi-millionaires can accomplish for the political degradation of a commonwealth.”⁵³

Even the three justices on the Montana Supreme Court were dragged into the scandal. Served with subpoenas by federal marshals, they were forced to travel from Helena to Washington, D.C., in the middle of winter to testify about how Clark’s agents had tried unsuccessfully to bribe them in a related case, with one being offered as much as $100,000 to vote for the outcome Clark wanted.⁵⁴

Despite some unpleasant cross-examination by Clark’s lawyers, the justices’ reputations remained largely unsullied, and their credible testimony was cited by the Committee as deserving of “special consideration”⁵⁵ when it unanimously declared Clark’s election “null and void on account of briberies, attempted briberies, and corrupt practices by his agents.”⁵⁶ Clark resigned to avoid expulsion by the full Senate.⁵⁷

The entire episode exposed the Nation to what the Committee described in its recommendation to expel Clark as “the bad repute into which the State had fallen.”⁵⁸ Perhaps the only bright spot was that Clark’s 1899 election campaign ultimately helped ensure adoption of the Seventeenth Amendment, which took election of senators away from easily bribed state legislators and gave it directly to voters.⁵⁹

B. The Second Judicial District Court, Silver Bow County, Montana

The “Montana situation,” as the Roosevelt Administration referred to the state’s corrupt political culture, also included judges among the elected officials who, unlike the Supreme Court justices who testified against Clark, actually were for sale.⁶⁰ In particular, two Butte district court judges, William Clancy and Edward Harney, serve as cautionary tales about the dangers of allowing corporate interests to spend freely to elect judges.

In the early 1900s, F. Augustus “Fritz” Heinze was engaged in a fierce legal battle with the Amalgamated Copper Company. Controlled by some of the directors of Standard Oil, including Henry Rogers and William Rockefeller, Amalgamated Copper had recently taken ownership of the famous Anaconda Copper Mining Company, which had been created by the third copper king, Marcus Daly.⁶¹ Daly died in November 1900,⁶² shortly after “the most turbulent and complex election in Montana’s history.”⁶³ Before that election, Heinze and Clark formed an alliance against Daly and Amalgamated Copper.⁶⁴ Clark’s goal was to elect enough supporters to the Montana Legislature that he would not have to bribe them to be elected to the U.S. Senate this time. Heinze’s goal was to control the district judges in Butte so he could continue to tie up Amalgamated Copper in court.⁶⁵ Both were successful.⁶⁶

With Clancy’s re-election and Harney’s election, those two judges could control the docket in Butte district court by outvoting the independent third judge, thus allowing Heinze’s judges to decide which cases were assigned to which judge.⁶⁷ As a result, Heinze consistently received favorable but often legally unsound rulings from the two judges he had helped elect.⁶⁸ That was especially true of Clancy, who presided over most of Heinze’s and Amalgamated Copper’s competing claims to the tens of millions of dollars of ore under Butte.⁶⁹ Most of Clancy’s pretrial decisions on who controlled various mines could not be appealed until after a final judgment in the litigation, which, thanks to Clancy’s willingness to drag matters out, was often years away.⁷⁰ Nor did Montana have a statute allowing parties to disqualify judges for alleged bias.⁷¹ So Heinze’s strategy was to gain control and mine the disputed claims while the litigation was still in the trial courts of Butte, and to keep it there as long as possible.⁷²

Of the two judges doing Heinze’s bidding, Harney’s conduct was undeniably the more shocking, thanks to one case involving not just bribery but also illicit love letters. Harney, according to the Montana Supreme Court, engaged in a “carnival of drunkenness and debauchery” with a female employee of Heinze’s company during a bench trial in which the company was the defendant.⁷³ But Clancy’s misconduct was by far the more significant due to its lasting consequences. In fact, Clancy might, unfortunately, be the most noteworthy judge in Montana history because of the far-reaching impact his biased rulings had—not just on Montana’s reputation, but on its current laws and judicial procedures.⁷⁴

 

1. The Honorable Edward Harney

One of the more significant cases in which Clancy and Harney presumably exercised their control over the Butte docket involved a small but strategically located mine known as the Minnie Healy. The case was assigned to Harney for a bench trial in 1901. Heinze claimed he bought the property under an oral agreement from Miles Finlen. Finlen claimed there had been no sale and sued. He was backed by his friend Marcus Daly and Amalgamated Copper because they feared that Heinze would use the Minnie Healy, which was adjacent to valuable Amalgamated Copper mines, to steal ore from those mines or even try to claim ownership of the ore under mining’s apex law.⁷⁵

Before his election, Harney was known as a talented trial attorney, but had become a “hard drinker who had fallen into a life of dissolution.”⁷⁶ After the Minnie Healy bench trial, Harney ruled in Heinze’s favor, and Finlen appealed. In a remarkable opinion, the Montana Supreme Court ordered a new trial based on Harney’s conduct outside the courtroom.⁷⁷ The Court described in detail how Harney, who was married with a family, had an affair during the trial with a woman, Ida Brackett, who worked for Heinze’s company.⁷⁸ The two exchanged letters, which Amalgamated Copper’s lawyers somehow obtained and submitted with affidavits to the Court during the appeal.⁷⁹ The justices were blunt in their assessment of Harney’s conduct:

[T]he district judge who tried this cause was completely lost to all sense of decency and propriety, and . . . he made of the occasion, while off the bench, a carnival of drunkenness and debauchery, in company with a female employé of [Heinze’s] Montana Ore Purchasing Company, one of the defendants to the action.⁸⁰

A letter from Brackett to Harney, which became known popularly as the “dearie” letter because of its salutation, contained an offer of financial assistance to Harney, reminded him “who his friends were” before he became a judge, informed Harney that Brackett had been authorized to promise him certain “generous[]” things after he left the bench, and referred to statements Harney had made to her about the evidence in the Minnie Healy case.⁸¹ The Court wrote that “[t]here is absolutely nothing in that so-called ‘dearie’ letter which could with any show of propriety be the proper subject of discussion between the judge trying a cause and an employé of the one of the parties to the action . . . .”⁸² Harney’s receptive response to Brackett, in which he wrote that he would be “glad to talk further with [her] about the subject therein mentioned,” outraged the Court even more.⁸³ The final straw was that Harney’s own affidavit, which the Court said was “most remarkable for what it does not say,” failed to deny the allegations.⁸⁴ The Court concluded by stating:

No judgment of a court of justice so tainted with corruption as the record leaves this should stand, and its cancellation in this instance will be the evidence of the determination of this court to pursue to the utmost its constitutional and lawful authority, to the end that public confidence in our judicial system may not be lessened, and that the fountain of justice may be kept pure.⁸⁵

The Court then granted Finlen a new trial before a different judge. Unfortunately for him and Amalgamated Copper, the new judge was William Clancy.⁸⁶ More importantly, the assignment of the case to Clancy would, as explained below, result in Montana’s ultimate degradation.

 

2. The Honorable William Clancy

Clancy was first elected judge in Butte as a Populist in 1896, four years before Harney and before Heinze’s legal battles heated up.⁸⁷ But he soon became “the key to Heinze’s political power” due to his “unflinching loyalty”⁸⁸ and the convenient fact that Heinze’s cases always seemed to end up assigned to Clancy through “some clerical jugglery.”⁸⁹ A “curbstone lawyer of . . . little education,” ⁹⁰ Clancy was well liked by the working class, who considered him one of them and believed he would “safeguard the interests of the common man from the capitalistic grasp of the plutocrats.”⁹¹ Those common men also appreciated his unkempt appearance, which often included remnants of past meals and tobacco juice in his flowing white beard.⁹²

Even before Amalgamated Copper was formed in April 1899, Heinze and his Montana Ore Purchasing Company had already begun their legal battles. Heinze had filed several lawsuits against the Boston & Montana Consolidated Copper & Silver Mining Company, which would later become part of Amalgamated Copper.⁹³ Even as early as 1898, Clancy’s bias in favor of Heinze was becoming noticeable to the Montana Supreme Court, which began chastising him in its opinions. For instance, in November 1898, the Court found Clancy had abused his discretion in refusing to issue an injunction against Heinze’s company in a suit for trespassing on another mining claim. Although even Clancy had found that the evidence supported the injunction, the Court said he had refused to issue it “on the wholly untenable ground” that it would put some of Heinze’s miners out of work.⁹⁴ The Court also criticized Clancy’s reliance on a statute to support another ruling that the Court reversed, stating that the statute was “not susceptible of the interpretation which the court below gave it.”⁹⁵

A few months later, the Court again used harsh words in reversing Clancy, this time for granting Heinze a preliminary injunction preventing his opponent from mining on its own property, even though Heinze’s own expert witnesses did not support his claim for trespass. But the Court was particularly offended that Clancy had prohibited the defendant from suing Heinze without an order from Clancy authorizing the litigation in advance. The Court held that Clancy “violated the plainest rules which confine [his] power within the bounds of law and sound legal discretion.”⁹⁶

As long as Clancy’s biased rulings for Heinze came before the Court on direct appeal, as in the two preliminary injunction cases discussed above, the Court could reverse Clancy’s ruling and undo the damage. But when his rulings involved crucial pretrial matters that were interlocutory, and therefore not appealable until after entry of final judgment, the Court was in a quandary. No matter how unfair a ruling might be, the Court’s hands were tied until the case came to it on direct appeal.⁹⁷ Under Montana law, the Court could not even issue an extraordinary writ, such as certiorari or prohibition, as long as Clancy had not exceeded his jurisdiction. So in another lawsuit, when Heinze asked Clancy to appoint one of Heinze’s cronies as receiver for a competing mining company pending trial—effectively giving Heinze himself control over the company and its $40 million in assets—the Supreme Court issued a series of opinions acknowledging it was powerless to review Clancy’s rulings because he had jurisdiction to appoint a receiver.⁹⁸ Even if Clancy was biased in favor of Heinze, the Court held it could do nothing at this stage:

We cannot grant the writ upon the showing made of Judge Clancy’s prejudice or enmity. . . . The facts that Judge Clancy does not like . . . counsel for relators, that he has decided various cases against relators, and is on friendly terms with the officers of [Heinze’s] Montana Ore-Purchasing Company, and may not select a fit person as receiver, if he appoints one, are far from sufficient to oust the lower court of jurisdiction.⁹⁹

The four opinions by the Court on this issue led one historian to write that “Heinze fared quite well with the Supreme Court . . . .”¹⁰⁰ But those opinions actually reveal the Court’s increasing frustration with both Clancy and the limits on the Court’s own power to do nothing about him. The Court would soon do something to address both, but only after the justices, “men of unimpeachable character and the highest integrity,”¹⁰¹ had been splattered with the mud of Montana’s corruption themselves. As noted above, at the same time the justices were frustrated by their inability to control Judge Clancy, they were subpoenaed to make the long trip to Washington D.C. in the winter of 1900, to be questioned about their own honesty before an investigative committee of the Senate.¹⁰² That unpleasant trip could not help but bring home to the justices the impact Montana’s corruption was having on the reputation of the state’s elected officials, including themselves.¹⁰³

As a result, less than a year after their forced visit to Washington, the Court created a new and previously unknown writ allowing it to immediately review crucial but non-appealable pretrial interlocutory rulings by trial judges like Clancy.¹⁰⁴ In State ex rel. Whiteside v. District Court of First Judicial District, the Court announced the creation of a new writ of supervisory control that allowed the Court great latitude “to control the course of litigation in the inferior courts.”¹⁰⁵ The writ remains in active use today, and is codified in the Montana Rules of Appellate Procedure.¹⁰⁶

Little doubt exists that the writ was invented largely to control Clancy, and to a lesser extent Harney. Between late 1900, when the writ was created, and early 1905, when Clancy and Harney left office after losing re-election bids, the Supreme Court discussed issuing the writ of supervisory control 29 times. All but three of them involved those two Butte judges, and most involved Clancy.¹⁰⁷ The unique and somewhat controversial writ of supervisory control, therefore, is one of the significant and lasting impacts Clancy’s corruption has had on Montana.

Two additional significant and lasting impacts arose from Clancy’s handling of the Minnie Healy case, one directly and the other indirectly. After sitting on the case for several years with little action, on October 22, 1903, Clancy ruled in favor of Heinze and awarded him full ownership of the Minnie Healy.¹⁰⁸ At the same time, he ruled in another lawsuit that Amalgamated Copper, a foreign corporation, could not buy any Montana mining companies without the consent of every shareholder, which effectively meant that Amalgamated Copper was illegal and Heinze had won the war.¹⁰⁹ Amalgamated Copper’s response was swift and brutal. Although the Supreme Court would eventually reverse Clancy’s ruling, the company was not going to wait the months necessary for that. Instead, Amalgamated Copper ordered the immediate shut down of most of its Montana operations.¹¹⁰ The “Great Shutdown” threw the majority of Montana’s labor force, more than 15,000 workers, suddenly out of work.¹¹¹ And before Amalgamated Copper would resume operations, it issued a demand to Governor Joseph Toole. Unless he called a special session of the Legislature to pass a “Fair Trials” bill, allowing litigants to disqualify a trial judge based on the mere allegation of bias, it would remain shut down.¹¹²

The Governor resisted Amalgamated Copper’s demand for more than two weeks, but on November 10, 1903, he acquiesced and agreed to call the special session in December so that Montana’s workers could survive the winter.¹¹³ The Legislature quickly passed the bill Amalgamated Copper demanded,¹¹⁴ leading to widespread condemnation of Montana for giving in to corporate blackmail. As one out-of-state newspaper noted, “It took the Amalgamated Copper Company just three weeks to coerce Montana into falling on her knees with promises of anything that big corporation might want.”¹¹⁵

Subsequently, the Montana Supreme Court reluctantly held that the bill was constitutional, despite its unprecedented breadth.¹¹⁶ At the time, there were only 15 district judges in the entire state, but the Fair Trials bill—or Clancy Bill, as it became known—allowed each party to disqualify up to five judges each simply by alleging they were biased.¹¹⁷ Fittingly, the case in which the Court upheld the Fair Trials bill involved Clancy, who had refused to follow the Act and disqualify himself after being accused of bias.¹¹⁸ As with William Clark’s bribery scandal several years earlier, the Great Shutdown of 1903 “called national attention to the prostitution of the commonwealth of Montana by mining interests.”¹¹⁹ But this time judicial corruption was the root cause.

Finally, the “Montana situation,”¹²⁰ a euphemism that referenced the three widely publicized episodes described above, along with the general corruption that pervaded almost every aspect of the State’s culture and politics, had one more lasting impact. It led the residents of Montana to rise up in 1912, and pass the Corrupt Practices Act by citizen initiative.¹²¹ As discussed below, that public response to the degradation of Montana politics at the hands of corporate interests is the foundation of the Montana Attorney General’s fight to uphold Montana’s ban on independent expenditures by corporations in campaigns for elected office. It also provides the Montana Supreme Court an avenue to uphold the ban on corporate expenditures in judicial elections, regardless of how it rules on political elections.

 

III. JUDICIAL ELECTIONS AND INDEPENDENT EXPENDITURES: CITIZENS UNITED, CAPERTON, AND WESTERN TRADITION PARTNERSHIP

At a time when concerns about the conduct of judicial elections has reached a fever pitch . . . the Court today unleashes the floodgates of corporate and union general treasury spending in these races.

—Justice John Paul Stevens¹²²

 

We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators.

—Unnamed AFL-CIO Official¹²³

 

In addition to the widespread criticism of the majority opinion in Citizens United as judicial activism,¹²⁴ a second criticism has focused on its failure to distinguish between elections for political office and elections for judicial office.¹²⁵ That failure is surprising because Justice Kennedy, who wrote the 5–4 majority opinion in Citizens United, also wrote the 5–4 majority opinion in Caperton v. A.T. Massey Coal Co., the Court’s recent case on judicial bias.¹²⁶ There is a pronounced disconnect between the two opinions, despite their close proximity and common author.¹²⁷ That disconnect provides the Montana Supreme Court the necessary opening to uphold Montana’s ban on independent corporate expenditures as applied to judicial elections in a way that does not conflict with Citizens United,¹²⁸ even if it concludes the ban is unconstitutional in political elections. Should the Court rule that way, its decision would also give the U.S. Supreme Court the opportunity to do what it failed to do in Citizens United: recognize that judicial elections need greater protection from corruption, including the appearance of it, than political elections.

A. Citizens United v. Federal Election Commission

Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. . . . Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

—Justice John Paul Stevens¹²⁹

Citizens United has been criticized almost as much for the way the Court reached its result as for the result itself. The case concerned a 90-minute documentary, Hillary: The Movie, produced by Citizens United, a non-profit corporation.¹³⁰ The documentary was a critical biography of Senator Hillary Clinton, who was then running for president.¹³¹ Federal law at the time, 2 U.S.C. § 441b, prohibited corporations from making either direct contributions to candidates or independent expenditures that expressly advocated for the election or defeat of candidates for certain federal offices.¹³² The Supreme Court had upheld a similar law at the state level in Austin v. Michigan Chamber of Commerce.¹³³ Additionally, § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA) had amended § 441b to prohibit corporations from publicly distributing via radio or television any “electioneering communication” referring to a federal candidate, even if it did not expressly advocate for or against the candidate, within 30 days of a primary election or 60 days of a general election.¹³⁴ Relying on Austin, the Court had previously upheld that provision in McConnell v. FEC.¹³⁵

Fearing that distributing Hillary would violate § 441b, Citizens United brought a declaratory judgment action against the FEC and sought a preliminary injunction barring enforcement of the law. Citizens United argued that the prohibition on independent corporate expenditures was unconstitutional and also challenged the constitutionality of the statute’s disclaimer and disclosure requirements.¹³⁶ In its complaint, Citizens United alleged that the statute was unconstitutional both facially and as applied to Hillary.¹³⁷ After the preliminary injunction was denied by the three-judge panel of the district court authorized to hear challenges to the law, Citizens United appealed directly to the Supreme Court as allowed,¹³⁸ but the appeal was denied.¹³⁹ Citizens United then stipulated with the FEC to dismiss its facial challenge in the district court, after the FEC had said it would need more time to gather the evidence necessary to refute such a broad claim.¹⁴⁰ The three-judge panel subsequently granted the FEC summary judgment, and Citizens United again appealed directly to the Supreme Court.¹⁴¹ In its notice of appeal, Citizens United expressly stated that it was raising only an as-applied challenge.¹⁴² The case was briefed and argued on that basis.

Subsequently, the Court sua sponte ordered the parties to submit supplemental briefs addressing whether § 441b was facially invalid and whether the Court should also overrule Austin and the part of McConnell that upheld the ban on electioneering communications in BCRA.¹⁴³ The 5–4 majority opinion ultimately answered those questions affirmatively, concluding that § 441b’s prohibition on independent expenditures amounted to an “outright ban” on corporate speech.¹⁴⁴ The Court did, by an 8–1 vote with only Justice Clarence Thomas dissenting, uphold the disclaimer and disclosure requirements of the law.¹⁴⁵

The dissenting Justices harshly characterized the unusual procedure the majority used to declare the statute unconstitutional: “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”¹⁴⁶ Although the majority opinion spends pages defending its decision to decide the case on the broadest possible basis even though neither party had argued for that, it only cursorily addressed the most significant problem with its decision: the lack of the detailed factual record usually required to determine that no circumstances exist under which a statute would be constitutional. As the dissent explained:

The problem goes still deeper, for the Court does all of this on the basis of pure speculation. Had Citizens United maintained a facial challenge, and thus argued that there are virtually no circumstances in which BCRA § 203 can be applied constitutionally, the parties could have developed, through the normal process of litigation, a record about the actual effects of § 203, its actual burdens and its actual benefits, on all manner of corporations and unions. . . . In this case, the record is not simply incomplete or unsatisfactory; it is nonexistent. Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert. The Court now negates Congress’ efforts without a shred of evidence on how § 203 or its state-law counterparts have been affecting any entity other than Citizens United.¹⁴⁷

This lack of a developed record, especially regarding the extent and impact of corruption, gravely concerned the states like Montana that had similar laws and their own experiences with electoral corruption. The Montana Attorney General’s Office took the lead in writing and filing an amicus brief on behalf of those 26 states after the Court ordered rehearing.¹⁴⁸ The states urged the Court not to resolve the case on a facial challenge: “The sparse record below is particularly ill-suited to a facial challenge that would call into question the century of state and federal laws and decisions that led to Austin.”¹⁴⁹ The undeveloped record in Citizens United, juxtaposed against the extensive and unique history of corruption that led Montanans to enact the Corrupt Practices Act, remains the Montana Attorney General’s main argument¹⁵⁰ as to why Western Tradition does not have to be decided the same way as Citizens United.

The majority rejected the states’ entreaty, asserting without apparent irony that because it had reviewed an extensive record when it had held the same statute constitutional in McConnell, it had all the record it needed to declare the statute unconstitutional seven years later.¹⁵¹ That reasoning becomes even more questionable when one looks at what the majority in McConnell concluded about that same record. In his dissent in McConnell, Justice Kennedy unsuccessfully argued for the same narrow view of corruption that ultimately prevailed in Citizens United based on what that Court’s 5–4 majority said was its review of the record in McConnell.¹⁵² Yet the reason the majority in McConnell rejected Kennedy’s dissent in that case was because the record, in the majority’s view, provided ample support for upholding § 213 of BCRA: “This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.”¹⁵³

Despite the lack of a record in Citizens United or citations to any empirical evidence in support of its holding, the majority in Citizens United reached several remarkably sweeping conclusions about the impact of corruption on the electoral process.¹⁵⁴ The first was the Court’s categorical assertion “that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”¹⁵⁵ The Court also held that the only “sufficiently important governmental interest in preventing corruption or the appearance of corruption . . . was limited to quid pro quo corruption.”¹⁵⁶ In other words, the only corruption the government has a compelling interest in preventing is outright bribery. Additionally, the Court stated that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: ‘Favoritism and influence are not . . . avoidable in representative politics.’”¹⁵⁷ And finally, the Court stated: “there is only scant evidence that independent expenditures even ingratiate. Ingratiation and access, in any event, are not corruption.”¹⁵⁸

The dissenting Justices found the majority’s view of corruption narrow and unrealistic, and they said it ignored both precedent and the record from McConnell on which the majority claimed to have relied:

Corruption can take many forms. Bribery may be the paradigm case. But the difference between selling a vote and selling access is a matter of degree, not kind. And selling access is not qualitatively different from giving special preference to those who spent money on one’s behalf. Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics. It certainly does not accord with the record Congress developed in passing BCRA, a record that stands as a remarkable testament to the energy and ingenuity with which corporations, unions, lobbyists, and politicians may go about scratching each other’s backs—and which amply supported Congress’ determination to target a limited set of especially destructive practices.¹⁵⁹

As for the majority’s additional pronouncement that “[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy,”¹⁶⁰ the dissent labeled that wishful thinking by judicial “fiat.”¹⁶¹ “The electorate itself has consistently indicated otherwise, both in opinion polls and in the laws its representatives have passed, and our colleagues have no basis for elevating their own optimism into a tenet of constitutional law.”¹⁶² Finally, and most significantly for purposes of this article, the dissent also noted that the majority’s narrow view of corruption was in conflict with its decision in Caperton the year before.¹⁶³

B. Caperton v. A. T. Massey Coal Company

The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.

—Justice Anthony Kennedy¹⁶⁴

The Court’s 2009 decision in Caperton also received widespread media coverage, but not because it overturned decades of law or arguably undermined democracy. Instead, Caperton generated unusual public interest because its backstory was so compelling that novelist John Grisham drew upon the case¹⁶⁵ for his courtroom thriller, The Appeal.¹⁶⁶ Hugh Caperton owned a small mining company that sued mining giant A.T. Massey Coal Company for fraudulent misrepresentation, concealment, and tortious interference with contractual relations.¹⁶⁷ A West Virginia jury awarded Caperton $50 million in compensatory and punitive damages in 2002.¹⁶⁸ In June 2004, the trial court denied Massey Coal’s post-trial motions challenging the verdict and damage award, writing that Massey Coal had “intentionally acted in utter disregard of [Caperton's] rights and ultimately destroyed [Caperton's] businesses because, after conducting cost-benefit analyses, [Massey] concluded it was in its financial interest to do so.”¹⁶⁹ Massey Coal eventually appealed to the West Virginia Supreme Court.¹⁷⁰

Before the appeal was heard, West Virginia held a partisan election for a seat on its Supreme Court, in which the incumbent, Justice Warren McGraw, a Democrat, was running for re-election.¹⁷¹ His opponent was Republican lawyer Brent Benjamin.¹⁷² Knowing the West Virginia Supreme Court would eventually review Caperton’s judgment, Don Blankenship, Massey Coal’s chairman, CEO, and president, threw his considerable wealth behind challenger Benjamin. Besides making the $1,000 maximum contribution allowed by state law directly to Benjamin’s campaign, Blankenship gave almost $2.5 million to a non-profit organization created to oppose McGraw and support Benjamin.¹⁷³ The group, named “And For the Sake of The Kids,” ran ads suggesting that McGraw had voted to let “a child rapist go free” to work in the schools.¹⁷⁴ Blankenship’s contribution to the group amounted to more than two-thirds of the money the group raised.¹⁷⁵ Additionally, Blankenship spent another $500,000 of his own money on independent expenditures for direct mailings and advertisements, bringing the total amount he personally spent to support Benjamin’s election to more than $3 million,¹⁷⁶ all but $1,000 in independent expenditures. That was more than the total spent by all other Benjamin supporters combined and three times as much as Benjamin’s own campaign committee spent.¹⁷⁷ Benjamin defeated McGraw with 53 percent of the vote.¹⁷⁸

In 2005, Caperton asked then-Justice Benjamin to recuse himself from hearing Massey Coal’s appeal due to Blankenship’s contributions, but Benjamin refused.¹⁷⁹ In 2007, Benjamin voted with the 3–2 majority to reverse Caperton’s $50 million verdict against Massey Coal.¹⁸⁰ Although the opinion found that Massey Coal’s conduct warranted the damages awarded, it reversed the trial court for two questionable reasons. First, the Court held that a forum-selection clause, in a contract to which Massey Coal was not a party, barred the suit in West Virginia. Second, the Court also held that res judicata barred the suit based on an out-of-state judgment to which Massey Coal also was not a party.¹⁸¹ Caperton sought a rehearing and moved again to disqualify not just Benjamin, but also another justice after photos came to light showing that justice vacationing in the French Riviera with Blankenship while the appeal was pending.¹⁸² Meanwhile, Massey Coal moved to disqualify one of the two dissenting justices for publicly criticizing Blankenship over his spending in the 2004 election.¹⁸³ Both the justice who vacationed with Blankenship and the dissenting justice who criticized Blankenship recused themselves.¹⁸⁴ In his memorandum granting Massey Coal’s recusal motion, the dissenting justice urged Justice Benjamin to also recuse himself because “Blankenship’s bestowal of his personal wealth, political tactics, and ‘friendship’ have created a cancer in the affairs of this Court.”¹⁸⁵ Benjamin again refused.¹⁸⁶

Benjamin, now serving as acting chief justice, selected two judges to replace the recused justices, and the Court granted rehearing.¹⁸⁷ Caperton requested for the third time that Benjamin recuse himself, this time citing a poll showing that two-thirds of West Virginians did not think he would decide the case impartially.¹⁸⁸ Benjamin again refused, and the Court again reversed Caperton’s verdict by a 3–2 vote, with the two dissenting justices writing that “’[n]ot only is the majority opinion unsupported by the facts and existing case law, but it is also fundamentally unfair’” and therefore raised federal due process concerns.¹⁸⁹

The U.S. Supreme Court granted certiorari and, in another 5–4 decision authored by Justice Kennedy, agreed with the dissenting justices’ assessment and reversed the West Virginia Supreme Court.¹⁹⁰ “[T]he risk that Blankenship’s influence engendered actual bias,” Kennedy wrote, “is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’”¹⁹¹ That was true, even though “there is no allegation of a quid pro quo agreement,”¹⁹² because “Justice Benjamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.”¹⁹³

Caperton involved a due process challenge to a judge’s refusal to recuse himself over bias allegedly created by the large independent expenditures of an individual with an interest in the litigation. So at first glance the case might not seem especially relevant to the issue in Citizens United of whether restrictions on independent campaign expenditures by corporations violate the First Amendment. That is essentially how the majority in Citizens United summarily dismissed the dissent’s argument that the results of the two cases were at odds with each other.¹⁹⁴ Caperton “is not to the contrary,” the majority wrote, because its “holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.”¹⁹⁵

But as explained below, despite the limited nature of the holding in Caperton, the Court’s conclusions about the corrosive effect of large independent campaign expenditures in that case is inconsistent with the broad statements about the lack of harm from those same expenditures in Citizens United. The disconnect between the two cases’ statements about corruption provides an opportunity for the Montana Supreme Court in Western Tradition Partnership to uphold Montana’s Corrupt Practices Act as applied to judicial elections.¹⁹⁶

C. Western Tradition Partnership v. Attorney General

What was true a century ago is as true today: distant corporate interests mean that corporate dominated campaigns will only work “in the essential interest of outsiders with local interests a very secondary consideration.”

—Professor Emeritus Harry Fritz¹⁹⁷

After Citizens United was decided, Western Tradition Partnership—a Colorado corporation—and two small Montana corporations sued to overturn Montana Code Annotated § 13–35–227(1).¹⁹⁸ That statute provides: “A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or political party.”¹⁹⁹ Western Tradition focused its challenge on the ban against corporate independent expenditures, not the ban against direct contributions.²⁰⁰ To defend the statute during summary judgment proceedings, the Attorney General submitted testimony about Montana’s history of corruption via an affidavit from Harry Fritz, professor emeritus of history at the University of Montana and former Montana legislator in both the House and Senate.²⁰¹ Fritz’s uncontroverted testimony established that “[f]or two decades around the turn of the Twentieth Century, William Clark and his fellow ‘Copper Kings’ suffocated Montana’s public sphere through the influence of their mining corporations” and “dominated political debate in Montana . . . drown[ing] out Montanans’ own voices in the political process.”²⁰² Fritz cited the incidents surrounding Clark’s 1899 bribery campaign to become a U.S. Senator,²⁰³ the corruption in the Butte trial courts,²⁰⁴ and the Great Shutdown of 1903 after Judge Clancy had ruled against Amalgamated Copper one too many times.²⁰⁵ Fritz described the Great Shutdown as “naked corporate blackmail of a sovereign state, and Montanans never forgot it.”²⁰⁶

As a result of that corruption, Montanans amended the state Constitution in 1906, and granted themselves the right to enact laws through citizen initiative “after decades of trying to take back their state from corporate interests.”²⁰⁷ Six years later, they used the power of initiative to enact Montana’s Corrupt Practices Act, with 77 percent of Montana voters in favor.²⁰⁸ The Act stated that no corporation or individual holding the majority of stock in any corporation “shall pay or contribute in order to aid, promote or prevent the nomination or election of any person, or in order to aid or promote the interests, success or defeat of any political party or organization.” ²⁰⁹ Fritz testified that the Corrupt Practices Act “reflected Montanans opposition to, and intolerance of abuses that grew out of corporate revolution of the late 19th century, including the power wielded by the ‘Copper Kings’ of Montana and other powerful corporate interests.”²¹⁰

Ultimately, Fritz’s expert testimony made no difference to the district court. In granting summary judgment to Western Partnership, Judge Sherlock questioned the relevance of Montana’s history of corruption by succinctly noting that “the Copper Kings are a long time gone to their tombs.”²¹¹ Based on Citizens United, Judge Sherlock then rejected all of the State’s arguments as to why it had a compelling interest in prohibiting independent corporate expenditures, noting that Montana’s law was even broader than § 441b.²¹² In particular, the district court rejected the state’s anticorruption argument: “Citizens United addressed this very concern [and] held that the anti-corruption interest is not sufficient to displace the speech here  . . . .”²¹³ The Attorney General subsequently appealed to the Montana Supreme Court, which heard argument on September 21, 2011.²¹⁴

Given the sweep of the majority opinion in Citizens United and the questions asked by openly sympathetic justices at the Western Tradition oral argument, the likelihood seems small that the Montana Supreme Court will uphold Montana’s complete prohibition on independent corporate expenditures and reverse the district court. The U.S. Supreme Court left little doubt that its ruling was applicable to governments at all levels when it said, “the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”²¹⁵ Therefore, despite the fact Montana has a record of corruption that led its citizens to pass the precursor to the law in question, the language of Citizens United likely sweeps too broadly to allow the current version of Montana’s Corrupt Practices Act to survive completely intact.²¹⁶ That conclusion seemed to have been foreshadowed by one Montana justice’s candid comment near the end of the oral argument. Justice James Nelson, who has openly criticized Citizens United,²¹⁷ told Attorney General Bullock: “I’m on your side on this. The problem is that we have a U.S. Supreme Court decision that is the law of the land. They’ve spoken.”²¹⁸

D. Caperton v. Citizens United: Judicial Elections Are Different

Judges are not politicians who can promise to do certain things in exchange for votes.

—Chief Justice John G. Roberts²¹⁹

While the U.S. Supreme Court may have spoken regarding prohibitions on corporate independent expenditures generally, what it said about similar prohibitions in the context of judicial elections is far less clear because of the disconnect between Citizens United and Caperton. That disconnect arises from two striking inconsistencies in the opinions. Examining how Caperton is inconsistent with Citizens United suggests that if confronted squarely with the issue of independent corporate expenditures in judicial elections, a majority of the Court might be willing to recognize what seems obvious to many—judicial elections really are different and should be treated that way under campaign finance law.²²⁰

The first inconsistency is the way the two opinions characterize the independent expenditures at issue in each case. In Citizens United, the Court followed the longstanding distinction in its cases between contributions made directly to candidates and independent expenditures made without coordination with the candidates’ campaigns. The Court has long held that direct contributions, because of the risk of quid pro quo corruption they pose, can be restricted in amount in the case of individuals and banned entirely in the case of corporations and unions.²²¹ But when it comes to independent expenditures, individuals like Don Blankenship cannot be restricted in any way in deciding how they independently spend their money, as long as they do not coordinate with a campaign. After Citizens United, corporations also are not restricted in their independent expenditures, but they still cannot make direct contributions to candidates. So the distinction between contributions and expenditures remains a crucial one.²²²

But not in Caperton. There, the Court ignored its longstanding distinction, and instead repeatedly referred to Blankenship’s $3 million dollars in independent expenditures as “contributions” to Justice Benjamin’s campaign.²²³ As the dissenters in Citizens United noted, the Caperton majority had:

accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship’s spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.”²²⁴

The majority’s response to the dissent on this point was so brief that it has been described as “curt and dismissive,” as well as “unpersuasive.”²²⁵ Rather than respond directly to the dissent’s point, the majority focused solely on the remedy involved: “Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.”²²⁶ Given the opportunity by the dissent to explain its conflation of independent expenditures with direct contributions, and thus address head-on the question of whether judicial elections are different from political elections, the majority passed, leaving the question open for a future case.

The blurring of any difference between contributions and expenditures suggests that in the context of judicial elections, the Caperton majority—and particularly Justice Kennedy, the swing vote and author in both Citizens United and Caperton—sees little difference between the two methods of financially supporting a candidate in terms of the risk of corruption they pose, and it chose to use the terms synonymously to make that point.²²⁷ That suggestion draws further support from the majority’s recognition that “‘public confidence in the fairness and integrity of the nation’s elected judges’. . . . is a vital state interest.”²²⁸ Compare that statement to statements in Citizens United that “[t]he fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,”²²⁹ and “there is only scant evidence that independent expenditures even ingratiate. . . . Ingratiation and access, in any event, are not corruption.”²³⁰ While the majority in Citizens United might believe influence over, ingratiation with, and access to politicians by campaign supporters is not corruption, it almost defies belief to think all of them would believe the same about elected judges, given the state’s vital interest in public confidence in judicial fairness and integrity.

The second inconsistency is the two cases’ conflicting views on whether independent expenditures even pose a risk of corruption. In Citizens United, the majority opinion held categorically that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,”²³¹ although the actual basis for the certainty of that counterintuitive assertion is never made clear. The majority also asserted, again without support, that “[t]he appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”²³² Yet in Caperton, decided just seven months earlier, the Court held that large independent expenditures in support of a judicial candidate could create “a serious, objective risk of actual bias” that violated an opposing litigant’s due process rights.²³³ To reach that conclusion, the majority had to reject the categorical assertions about independent expenditures that it would make a few months later in Citizens United. To determine that Don Blankenship’s independent expenditures on behalf of Justice Benjamin required the justice to recuse himself, those expenditures by definition had to “give rise to corruption or the appearance of corruption,” or at least run the risk of “caus[ing] the electorate to lose faith in our democracy,” or both.²³⁴ Yet Citizens United would soon tell us with certainty that neither could happen.

Taken together, these inconsistencies suggest that the Court, or at least Justice Kennedy, scrutinizes judicial elections with a different, brighter light than political elections when it comes to the corrupting influence of large amounts of money flowing into them. That would strengthen the governmental interest in preventing corruption in judicial elections and should exempt those elections from the holding of Citizens United.

The possibility that Justice Kennedy recognizes that judicial elections are different should not surprise because, after all, numerous other knowledgeable people and groups believe just that. Those groups include the Conference of Chief Justices, which consists of the highest judicial officer in each state, the District of Columbia, and each U.S. commonwealth and territory.²³⁵ In 2007, it adopted a declaration bluntly entitled Judicial Elections Are Different From Other Elections, in which it condemned the impact of increasingly large sums of money injected into state judicial elections.²³⁶ That trend “threaten[s] to damage and possibly even destroy the systems that individual states have adopted to keep judicial elections different from elections for other elective officials.”²³⁷

That threat also led five former justices of the Montana Supreme Court to file an amicus brief in Western Tradition urging the Court to uphold this State’s ban on independent corporate expenditures in judicial elections, regardless of how it ruled on the statute as a whole. They noted that, “[m]embers of legislative and executive branches are meant to be responsive to the interests of their constituents. On the other hand, despite being popularly elected in nonpartisan elections, judges are expected to be impartial and independent in applying the law to any given circumstance . . . .”²³⁸ The former justices also cited Alexander Hamilton, who said that “the complete independence of the courts of justice is peculiarly essential” to the United States’ form of government.²³⁹

Perhaps more importantly, given the need for public confidence in the judiciary, citizens overwhelmingly share the concern about the impact of money on judicial elections. After Caperton, Harvard Law School Professor Lawrence Lessig observed that even today, despite controversial decisions like Bush v. Gore and accusations of activist judges with political agendas, the public still largely “presume[s] the integrity” of the judicial branch of the federal government, while at the same time it largely “presume[s] the corruption” of the Congress. “The difference is enormously important to the health and power of each: trust in the judicial branch has been steady and strong; trust in the legislative branch has been falling and weak.”²⁴⁰ Yet a USA TODAY/Gallup Poll taken in February 2009, shortly before Caperton was argued the second time, indicates that trust in the integrity of elected state judges may be dropping fast.²⁴¹ The poll

found 89% of those surveyed believe the influence of campaign contributions on judges’ rulings is a problem, and 52% deem it a ‘major’ problem. More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge’s election campaign.²⁴²

In other words, the public does not seem to be buying the majority’s optimistic assertion in Citizens United that “[t]he appearance of influence or access . . . will not cause the electorate to lose faith in our democracy.”²⁴³

 

IV. CONCLUSION

To resolve the conflict between Caperton and Citizens United, the Court should take the logical step and expressly

recognize that independent spending does have the potential to corrupt, but that outside the context of judicial elections where we are concerned especially with the public’s confidence in the fairness of the judicial process, the state’s interest in preventing such corruption is outweighed by the considerable First Amendment costs of limiting such spending.²⁴⁴

Of course, for the Supreme Court to do that, another court would have to first address the question. Western Tradition Partnership gives the Montana Supreme Court the opportunity to be that court. As the former Montana justices argue in their amici brief:

Montana’s compelling state interest in preserving the independence and impartiality of the judiciary intersects with the anti-corruption interest articulated by the [Attorney General] in this case. As the U.S. Supreme Court recognized in Caperton, the need to insure judicial elections are free from any appearance of bias or corruption is unquestionably stronger than the need in elections for legislative or executive offices.²⁴⁵

Citizens United dismissed concerns about electoral corruption generally by declaring that just because someone who independently spends large sums in a campaign “may have influence over or access to elected officials does not mean that these officials are corrupt.”²⁴⁶ What Citizens United disregarded is the fact that if the elected officials in question are judges, it means exactly that.

* Associate Professor, The University of Montana School of Law. Thanks to the staff of the Montana Law Review for their invaluable editing assistance. Any remaining mistakes are the author’s.