So, let’s pick up from yesterday. The Montana Supreme Court, on December 30, handed down a decision in Western Tradition Partnership, Inc. Attorney General, 2011 WL 6888567, ("WTP" for short) that, seemingly in the face of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2011),  has upheld Montana’s ban on corporate donations to a "a candidate or a political committee that supports or opposes a candidate or a political party."  2011 WL 6888567 at 1. The statute was enacted by initiative. An "initiative" is an "electoral process by which a percentage of voters can propose legislation and compel a vote on it by the legislature or by the full electorate; recognized in some state constitutions, the initiative is one of the few methods of direct democracy in an otherwise representative system." Black’s Law Dictionary, new pocket ed., 1996.

    The Montana Supreme Court places the 1912 initiative in historical context. The opinion notes the mineral rights fights that occurred in Montana in the late 1800s (still occur today). The goes on to describe a major power grab:

  W.A. Clark, who had amassed a fortune from the industrial operations in Butte, set his sights on the United States Senate.  In 1899, in the wake of a large number of suddenly affluent members, the Montana Legislature elected Clark to the U.S. Senate. Clark admitted to spending $272,000 in the effort and the estimated expense was over $400,000. Complaints of Clark’s bribery of the Montana Legislature led to an investigation by the U.S. Senate in 1900. The Senate investigating committee concluded that Clark had won his seat through bribery and unseated him. The Senate committee "expressed horror at the amount of money which has poured into politics in Montana elections ... and expressed its concern with respect to th general aura of corruption in Montana." Toole, Montana, An Uncommon Land, 186-94. 

  In demonstration of extraordinary boldness, Clark returned to Montana, caused the Governor to leave the state on a ruse and, with the assistance of the supportive Lt. Governor, won appointment to the very U.S. Senate seat that had just been denied him.  Toole, An Uncommon Land, 192-93. When the Senate threatened to investigate and unseat Clark a second time, he resigned. Clark eventually won his Senate seat after spending enough on political campaigns to seat a Montana Legislature favorable to his candidacy.

2011 WL 6888567 at 8.

  In other words, Clark bribed his way in once and was forced to resign. Tried a second time with the same result. Finally, he bought the whole Legislature (this was prior to the Seventeenth Amendment and the popular election of United States Senators in 1913) and got what he wanted. Mark Twain wrote of him: "He is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary with a ball and chain on his legs."  Clark made his money in a way that has become popular today. He was a banker and foreclosed on miners’ holdings. He became one of the Copper Kings and was amongst the richest men (women did not make that ranking a hundred years ago) in the country.

  The Montana Supreme Court concludes that "the State of Montana, or more accurately its voters, clearly had a compelling interest to enact the challenged statute in 1912.  At that time the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests."  2011 WL 6888567 at 11.

  I must conclude for now, but asked again: What have the people gained by the anonymity? I will add another thought. If corporations are to be treated as living human beings, and to have conferred upon them all of the rights of living human beings, do human beings now get to be treated as corporations? That means we get limited liability, nice juicy tax breaks, and—get this—immunity from imprisonment. After all, if a corporation breaks a law, it cannot be imprisoned.

   As I said yesterday, on this weekend’s show,  "Civil Discourse Now," our guests will be Nicolas Martin, who has blogged on the topic quite a bit and disagrees with my position. Nicolas is "a long-time libertarian. He is the faithful serf of his nine-year-old daughter and a funeral photographer. He can be reached at elegy-at-martinworld-dot-com." Also we shall have Jeff Cox, Indianapolis attorney and Ohio State alum, who is quick to point out the full name of his alma mater is The Ohio State University. I would point out, as friend of the Show Kurt Lorey points out, OSU’s website is osu.org, not tosu.org. Jeff might want to call his school’s alumni association and ask them to correct the error.