The case, American Tradition Partnership Inc. v. Bullock, is better known as "the Montana case." The court is being asked to overturn a 5-2 decision of the Montana Supreme Court that ruled that state elections in Montana are so fraught with the potential for corruption that strict campaign finance laws must be enforced.
The Montana court ruled that the U.S. Supreme Court's 2010 decision in Citizens United v. FEC applies to federal elections, not Montana elections. Citizens United held that corporations were, in effect, people and could contribute unlimited amounts to elections.
Now a group of Montana corporations is asking the U.S. Supreme Court to summarily overturn the Montana ruling. The court could rule as soon as Thursday. The justices also could schedule a full hearing on the case later this year. This would be a courageous admission that it got Citizens United wrong. Don't hold your breath.
The Supreme Court does get things wrong. It upheld "separate but equal" segregation laws in Plessy v. Ferguson. It upheld slavery in Dred Scott v. Sandford. However it generally takes decades and an entire new slate of justices for the court to right its wrongs. The same court is not likely to revisit a 2-year-old decision, even one as wrong as Citizens United.
But Montana Chief Justice Mike McGrath, in his majority opinion in American Tradition Partnership, identified the key fallacy in Citizens United: the court's assertion that corporate spending "does not give rise to corruption or the appearance of corruption."
Justice McGrath suggested that the corruptive history of Montana's "copper kings" shows the nature of the problem. In 1907, Mark Twain wrote of U.S. Sen. William A. Clark, a mining millionaire turned Democratic politician, "He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell."
Mark Twain would have loved Sheldon Adelson, the 78-year-old casino mogul who underwrote Newt Gingrich's bid for the Republican presidential nomination. He is reported to be ready to spend $100 million to help elect former Gov. Mitt Romney instead.
Last week, Adelson donated $10 million to a pro-Romney super-political action committee. Forbes magazine estimates that for a man worth $24.9 billion, a $10 million donation is the rough equivalent of a $40 donation from someone worth $100,000.
Sen. John McCain, R-Ariz., whose heroic work on the McCain-Feingold campaign finance law was wiped out by Citizens United, complained last week that foreign contributors could funnel money into U.S. elections by laundering it through one of Adelson's casinos. Adelson owns mega-casinos in Macau and Singapore, the source of most of his fortune.
True, but foreign millions are not the problem. Domestic millions are the problem. If money is a protected form of free speech as the Supreme Court ruled in Buckley v. Valeo in 1976 then the obverse is true: Lack of money equals lack of speech.
Because of the Supreme Court, some citizens today are less important than others. A cynic might say that's always been the case. But it shouldn't be enshrined in law.