Sen. Jon Tester recently introduced a proposed federal constitutional amendment that would end corporate personhood rights, overturning the U.S. Supreme Court’s Citizens United decision. The utility of such an amendment may be debated, since Citizens United was based on First Amendment free speech law, not referring to corporate personhood as a basis for the decision.
Citizens United ushered in the unprecedented use of dark, institutional mega-money to influence elections and, effectively, silence voices of individual small contributors and ordinary voters. The Supreme Court’s approach and subsequent court cases have chipped away at contribution limits by individuals, corporations, unions, special interests groups, “non profits” and trade associations. This has resulted in millions of dollars pouring into elections with little or no disclosure of the source of funding and with little, if any, accountability for truth and accuracy of their messages. Candidates are being “marketed” to voters in the same fashion that fast food and frozen vegetables are hawked to consumers.
But, according to the Supreme Court, while contributions directly to a candidate breed corruption, corporate expenditures on behalf of a candidate do not have any such corruptive effect.
For those living in a parallel universe that nuance may make sense, but, in reality it is a dichotomy grounded in utter fiction. Worse, this canard presents a clear and present danger for the majority of states, like Montana, where voters elect their judges and justices. Citizens United applies to judicial elections, too. Make no mistake; its effects will dominate judicial elections.
Montanans demand a judicial system that is grounded in two bedrock principles – impartiality and independence. Those principles are threatened when corporate and special-interest money drive judicial elections. The proof is found in an objective, non-partisan report: “Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions.”
This recent study, sponsored by the American Constitution Society for Law and Policy, provides critical data on the effect of campaign expenditures on judicial behavior from 2010-2012. The findings are disturbing.
The study demonstrates that holding factors like individual justice characteristics, ideology and data about state law and political climate constant, there is a significant relationship between business group expenditures to state supreme court justices and their votes on cases involving business matters. The numbers are stark – the more campaign expenditures a justice receives from business interests, the more likely the justice is to vote in favor of the business in court cases.
While some might argue that the judges are simply following their own ideological preferences and business expenditures for a judge merely reflect businesses’ desire for pro-business judges, “Justice at Risk” demonstrates the opposite. The report found that the influence of corporate campaign contributions goes far beyond ideological leanings. The largest influence was on judges affiliated with the Democratic Party, who are assumed to be less ideologically predisposed to favor business interests.
Importantly for Montana judicial elections, the data show expenditures influenced judges’ decisions in both partisan and non-partisan election systems. The report reveals the influx of expenditures generated by Citizens United and subsequent cases is having significant impact on judicial impartiality. The data demonstrate there is stronger correlation between business contributions and judges’ voting in the period from 2010-2012, compared to 1995-1998.
While Montana judicial elections have been free of mega-money influences, our state is not immune from the Citizens United effect. Montana’s Corrupt Practices Act was mostly declared unconstitutional by the Supreme Court. The 9th Circuit recently declared unconstitutional Montana’s statutory ban on partisan endorsements and expenditures – in what are supposed to be non-partisan elections. New challenges are being raised – all with a purpose of destroying the bedrock principles of judicial impartiality and independence.
For Montanans the battle lines are clear: we must fight for the fundamental right to settle our legal differences in impartial courts; we must condemn those who would destroy that ability; and we must reject efforts to marginalize the judicial system – a co-equal, constitutional branch of government. If those battles are lost to the forces of Citizens United, then we must change the manner in which judges and justices are chosen under our Constitution. Justice is, indeed, at risk.
James C. Nelson is a retired Montana Supreme Court justice who lives in Helena.