As has now been widely reported, the Montana Supreme Court recently tried to consign Citizens United to its well deserved fate by essentially holding that the U.S. Supreme Court’s folly does not apply in Montana. I have genuinely struggled about what to say about this 5-2 decision — which is why ThinkProgress has not reported on it prior to this post. On the one hand, the Montana justices defied an obviously wrong decision that threatens to turn American democracy into an auction that sells essential government jobs to whichever special interest group happens to be the highest bidder. On the other hand, ThinkProgress has been unequivocal in condemning conservative officials who believe that they have the power to defy Supreme Court decisions they disagree with, or who think that states can simply ignore federal law or the Constitution.
We will not abandon this commitment to the rule of law today. It is wrong when Newt Gingrich plots a campaign of massive resistance against judges he disagrees with, and Montana’s justices act no less illegitimately when they fail to follow a binding Supreme Court precedent. There is no reason to doubt that every word of the Montana Supreme Court’s decision — which explains in great detail how corporate money corrupts a state’s politics — is accurate, except for the part when they say that Citizens United does not force them to allow corporations to corrupt Montana.
Yet, while the Montana justices erred, they erred far less than the five U.S. Supreme Court justices who ignored the Constitution and decades of precedent to strike down a 63 year old ban on corporate money in politics. The U.S. Supremes will doubtless decide they need to review the Montana decision. They should do so, and they should reverse their error in Citizens United as soon as possible to minimize its impact on the upcoming election.
Additionally, every judge in the country should read Montana Justice James Nelson’s dissent from the decision rejecting Citizens United. He devotes most of the last eight pages of this decision to explaining why, despite the fact that he is bound by Supreme Court precedent, the one that binds him today is disastrously wrong:
While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business. [...]
Lastly, I am compelled to say something about corporate “personhood.” While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.
Even in an era when corporate interest groups dominate the U.S. Supreme Court, judges lack the authority to defy the high Court’s commands. What they can never lose, however, is their right to speak out in published opinions about how deeply misguided the nation’s highest Court has become. Justice Nelson’s opinion should be the model for every judge who fears the Supreme Court has forgotten to follow the very Constitution it is sworn to uphold.