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This weekend's column: Listen to the Montana Supremes ...

Published January 6, 2012 12:58 pm

This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Above: A Young Turk explains the Montana decision.——————

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 Twain

The above was quoted by Montana Chief Justice Mike McGrath in a refreshingly sharp opinion upholding that state's ban on corporate money in state and local elections. The ruling may not solve the problem of how to clean up the corruption that big money brings to politics, but it certainly puts the question in stark, and historically grounded, terms.

No one today stands accused of violating the Montana law. But three politically active groups, previously unhindered in their pursuit of political influence, brought the challenge in the wake of the U.S. Supreme Court's much-reviled Citizens United ruling.

That was the case that, in simplified language, gave corporations the same First Amendment rights as real people, so the Federal Election Commission cannot stop them spending unlimited amounts of cash to influence any federal election.

But that, McGrath says, is highly oversimplified.

The Citizens United ruling, he said, only applies to federal elections. And, he said, the U.S. Supremes were not so blunt as many suppose. Their judgment, the Montana chief explains in his useful gloss, was based on two arguments that don't apply in Big Sky Country.

1. Federal election laws, and the independent body that oversees them, have become such a snarl of written rules and unpredictable rulings that corporations can't easily follow them or be secure that something they reasonably believe is legal won't get them fined.

2. The lawyers arguing in favor of limits on corporate speech didn't have a clear-cut example of such soapboxing actually influencing, much less corrupting, any election or government process. Without such a clear and present danger to democracy to justify muzzling corporate spending, the U.S. Supreme Court said, limits were unreasonable.

But those arguments don't hold water in Montana, its high court said. For one thing, that state's campaign laws, with contribution limits and reporting requirements, are clear and easily followed. The outfits fighting the law have a long and successful history of political activity, including campaign donations and robust lobbying efforts in Helena.

For another, the corruption of big money is practically the original sin in which Montana was conceived. The upheld law was a ballot question, brought and ratified by the people an even 100 years ago because they were sick of their Legislature, their judges, even their newspapers, being bought and paid by copper tycoons such as W.A. Clark, the object of Twain's grudging admiration.

If the First Amendment worked as intended, corporations could spend all the money they want saying anything they want. Others, including opposing organizations, attacked candidates and, most importantly, the press, would call them out on their lies, if any, and all would be right with the world.

But when those with other views have a much smaller megaphone, and when the national media spends so much time tracking polls and very little calling out lies or pointing out what the real-world policy implications of elections, congressional actions and court rulings stand to be, that ideal falls away.

It's not a matter of new media vs. old. (Mark Twain would be a wicked hand at Twitter.) It's dumb media — creators and consumers — vs. smart.

And it's a federal judicial activism that, unlike the top court in Montana, doesn't see the damage its doctrinaire rulings do to the freedom of those who can't buy political influence.

George Pyle is a Salt Lake Tribune editorial writer. Email: gpyle@sltrib.com. Twitter: @debatestate.