Montana Experiences a Temporary Victory in the Freedom of Political Speech Issue

But Don’t Worry – An Anti-Free Speech Supreme Court Will Soon Correct Things

Freedom of speech is one of the more complex issues in American Constitutional concepts.  It should be simple; anyone has the right to express whatever opinions they wish to express, as long as their words do not violate the laws of defamation and libel, and as long as the words do not cause physical harm, such as yelling “fire” in a crowded theater or advocating violence and the like.

The reason things are not that simple is that many of the practitioners of free speech wish to deprive free speech to their opponents.  The main method to do this in modern America is to speak so loudly and so long that they deny others the right to exercise their right of free speech.  A linchpin of democracy is the concept that the best ideas will emerge from vigorous debate.  Many who have a weak position want to win that debate by denying the opposition access to the debate.

In politics it is very possible for one side to so dominate the debate that it defeats the purpose of free speech.  The most blatant example is large rich corporations and very wealthy people.  They can so dominate the means of communication that they effectively eliminate competing speech, in effect denying their opponents the right to be heard and have their ideas considered. 

This problem had led the Congress to try and protect free speech by limiting the degree to which one side could drown out the other side.  For some perverse reason, probably because they favor rich people and corporations over poor people, the Supreme Court has ruled these restrictions violate the rights of the rich and the large corporations, and so it has largely eliminated any restraint on their actions.

In Montana, where large mining interests have the means to drown out any opposition to their positions, the state Supreme Court upheld Montana’s entirely reasonable limits on dominant speech despite the Supreme Court ruling. 

Last week, the Montana Supreme Court agreed, finding that corporate spending in fact had corrupted elections in the resource-rich and sparsely populated state. Should the U.S. Supreme Court ultimately accept Montana's reasoning—which many observers find doubtful—it could open the door to additional campaign-finance regulation if justified by specific facts.

Soon after Montana's admission to the Union in 1889, the big copper companies and other out-of-state mining interests flooded Montana with political spending, and sometimes outright bribery, to seize control of its courts and statehouse, the opinion said. "This naked corporate manipulation of the very government…of the State ultimately resulted in populist reforms that are still part of Montana law," state Chief Justice Mike McGrath wrote for the majority. "The question then, is when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did."

By a vote of 5-2, the court held that those interests remained valid. The state's sparse population and reliance on farming and natural resources "make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government," Chief Justice McGrath wrote.

The court found corporate interests in political advocacy were addressed by state law allowing creation of political committees, which collect voluntary contributions from shareholders.

The losers in this court decision will take the case to the Supreme Court, where undoubtedly the Montana ruling will be overturned, and thus return control of the debate to the large mining interests.  Of course their position is that they contribute to the information in the ideas marketplace

The Montana law was challenged by conservative activists led by American Tradition Partnership, a group based in Virginia that collects funds for political advertisements from mining and other corporate interests. Executive director Donald Ferguson said the group was considering its options, which would likely include an appeal to the U.S. Supreme Court.

"I don't see how having less information for voters is a good thing," Mr. Ferguson said.

And yet ironically that is just what will happen, less information will be available, as it always is when one side dominates the debate to the extent that the others side cannot even get to present their positions to the public.  But the Supreme Court won’t mind, after all in their opinion this is the right side that is dominating, not those awful other ideas.