Cynthia Wolken's first project after she was appointed to fill an unexpired term on the Missoula City Council was a whopper: She drafted a resolution telling elected state and federal representatives that they need to protect citizens from the increasing power that corporations are granted to influence political dialogue.
"It undermines our trust in government," Wolken says. "When you look at how much money [Sen. Max] Baucus took from the insurance and medical industry, I don't see how you couldn't think that would influence his role in health care reform. [Rep. Denny] Rehberg takes so much oil and gas money—tons of corporate money. None of us can compete with that."
Wolken didn't have to push hard to get her colleagues on board. In August, the council voted 9-1 to place an "anti-corporate personhood" resolution on the upcoming municipal election ballot. In November, Missoulians may vote yes or no to urge Congress to amend the U.S. Constitution so that it explicitly states that corporations aren't entitled to the same rights as individuals.
Wolken says she hopes to use this advisory referendum as a springboard to help grow a grassroots movement powerful enough to counterbalance recent court decisions that eased restrictions on corporate election spending. If Missoula passes the referendum, it would join a handful of other cities and counties that are moving to do the same.
The legal debate over corporate personhood heated up in January of last year when the U.S. Supreme Court, in a 5-4 decision, overturned the law that had prohibited corporations and unions from using their funds to influence federal elections. The case stemmed from an attempt by the conservative nonprofit Citizens United to broadcast a movie critical of Hillary Clinton before the 2008 presidential primaries. The decision has since become known as "Citizens United."
The law said that states could ban direct corporate spending to influence elections. Citizens United argued that those restrictions chilled speech, and the Supreme Court agreed. It cited the First Amendment, saying that Americans—whether they are individuals or groups of people within a corporation—are equally entitled to speak freely about political issues. Justice Anthony Kennedy said the prohibitions were dangerous: "When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."
Libertarian groups such as the Institute for Justice, which filed a friend-of-court brief supporting Citizens United, lauded the court's opinion. "Citizens United was one of the most important decisions reaffirming First Amendment rights in the last 50 years," says Institute for Justice attorney Paul Sherman.
Now, Montana, Colorado, Michigan and New Hampshire, among other states, are working to reconcile the decision with their campaign finance laws. In Montana, the Supreme Court's precedent emboldened Denver-based pro-business, anti-environmentalist think tank Western Tradition Partnership, along with Champion Painting of Bozeman and the Montana Shooting Sports Association, to sue in an effort to loosen Montana's Corrupt Practices Act.
Passed by voters in 1912, the Corrupt Practices Act constituted an effort to reel in the power of the Copper Kings, who at the turn of the 20th century used their deep pockets to exert influence over electoral politics. The law bans direct corporate spending on political races.
Western Tradition won the first round when Montana District Judge Jeffrey Sherlock overturned the Corrupt Practices Act's corporate spending prohibition. He cited the Supreme Court's Citizens United decision in equating Montana's Corrupt Practices law with a "ban on speech" and barred the state from enforcing it.
The state-level debate is not over. Montana Attorney General Steve Bullock is appealing Sherlock's decision in the Montana Supreme Court. Bullock, who is running for governor as a Democrat in 2012, says the Corrupt Practices Act is necessary to protect the little guy. For instance, Bullock says, if the Montana Supreme Court sides with Western Tradition Partnership, electioneering money will flood the state and drive up the costs of running for office, making it tougher for average Montanans to wage electoral bids. "Such a corporate takeover of Montana candidate campaigns would accomplish the same type of corruption of Montana politics that existed before the Corrupt Practices Act," Bullock says.
Bullock and Wolken also point out that if Western Tradition succeeds in overturning Montana's law, corporate campaign contributions would be impossible to track. Bullock says he finds it ironic that Western Tradition is leading the charge against Montana's campaign finance law, because the think tank is now fighting a decision from Montana's Commissioner of Political Practices, who found Western Tradition had violated the law by refusing to disclose its expenditures. Bullock argues in his brief that Western Tradition exercises exactly the type of "covert corporate influence" the 1912 law sought to address: "This foreign corporation spends freely on attacking candidates in Montana, and it has plans to do much more."
Western Tradition says in court filings that limiting its constitutionally protected right to free speech uses the wrong tact to reign in the problem of money in politics: "As the District Court aptly stated, 'The answer to this problem is not a ban on speech, but the enactment of more comprehensive disclosure laws.'"
Wolken, meanwhile, is running unopposed for election to the Missoula City Council. As she meets constituents, she says, she tries to communicate the importance of supporting the referendum she's championed. Voting yes, she says, will send a clear message to Congress that Missoulians, at least, prefer their state law as it was before Citizens United: "We want a pure democracy."