What the Supreme Court got right in its Montana ruling

BY GUEST COLUMN | JUNE 28, 2012 6:30 AM

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Amid the flap over what was supposedly wrong the U.S. Supreme Court's decision yesterday to throw out Montana's 100-year-old campaign-spending limits, can we take a moment to consider what was right about it?

The Court held 5-4 that Montana may not continue to limit what corporations and unions may spend in support of or opposition to a political candidate. Some are calling the ruling "Citizen's United 2," in a nod to the landmark Citizens United v. FEC decision that dumped such limits for federal elections. That 2010 ruling said it was a violation of the First Amendment's protection of free speech to restrict such spending.

The Montana case was essentially another solid statement by the Court against government control of political speech, the most-protected form of expression under the First Amendment. Supporters of limits on campaign spending and contributions immediately attacked the justices. As MSNBC host Ed Schultz put it, "Democracy took another hit today — a big hit."

Angry liberals called for outright removal of such "activist" judges — more commonly a conservative demand — by ending lifetime appointments to the high court. Some attacked various justices as being in the pockets of this or that company or billionaire.

Montana Gov. Brian Schweitzer, a Democrat, appeared on cable talk shows to decry the decision to overturn the century-old state law, and to predict that elections in his state would now be bought and sold by corporations in the manner of the "Copper Kings" and other mining barons of old. Their excesses spurred Montana's election reform in 1912, especially after Congress refused even to seat a member elected on the strength of blatant corruption.

In at least one appearance, Schweitzer and MSNBC's Schultz joined in attacking the Court for striking down a law that had been around for so long with at least the tacit support of most Montanans. How, they raged, could the high court veto such a long-held part of Montana's culture? What about states' rights? Where were the conservatives, they asked, adding their criticism of this abridgement of the power of the people to set their own rules?

Like so many others who would limit "just a bit" of the First Amendment in an expedient rush to solve a perceived national problem, those who see great ills in unlimited campaign spending by corporations and unions have no problem with abridging free expression in the name of reform.

But the justices had it right, again: Nothing in the Constitution permits the government to ban political speech, be that of an individual or of a group of individuals organized as a corporation or a union.

Far better to seek remedies that respect the First Amendment while powering a near-automatic disinfectant to the potential corruption of "big money": Transparency. In an age when deposits and debits to individual bank accounts are nearly instantly recorded, there's no reason — except a lack of public pressure and political will — to make all campaign contributions immediately visible to all.

The solution here is more information, not less speech. The Montana decision is not a "hit" on democracy. It is a call for transparency, a call for voters to pay attention to political speech from all sides, not just the voices they agree with, for citizens to get engaged, not just enraged, as a result of big spending by the other side.

The marketplace of ideas is not for sale, the Supreme Court has now said twice, when we all are free to speak in it.

Gene Policinski
Senior VP of First Amendment Center

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