Supreme Court Montana Ruling: Forcing Politics to Depend on Money

For Harvard Law School professor Lawrence Lessig, the Supreme Court’s 5-4 decision this week to overturn a century-old Montana law banning political donations by corporations was probably unwelcome. For years, Lessig has campaigned against corporate influence on campaigns, calling the phenomenon “legal, but corrupt” in his 2011 book Republic, Lost. His views have prompted hostility from across the political fence, particularly from his fellow-academics.

Lessig would probably support Montana’s now-overpowered finance law. Originating in 1912, the statute was a late stand against the “Copper Kings”— a trio of industrialists who used their riches to manipulate politicians and society. One of them, William Andrews Clark, was caught in a corruption scandal involving Montana’s State Legislature and a U.S. Senatorial candidate. Likely fed up with such moral lapses, voters delivered a ban to end such vast sums of corporate money serving political ends.

A similar problem haunts America now. In a landmark 2010 case, the Supreme Court handed victory to Citizens United, allowing political campaigns to receive unlimited cash flow from businesses—but also baring a massive loophole. The ruling triggered the rise of Super Political Action Committees (SuperPACs), which can raise money from companies, people, or any associations and spend it to campaign for or against political contenders, provided there’s no collaboration—or at least, none on paper—with a candidate. Political satirist Stephen Colbert mocked the concept by forming a SuperPAC for a faux-presidential campaign, on air, short-circuiting apparent legal safeguards against coordination.

In his book, Lessig mostly protests a more traditional brand of dollar-politics: lobbying. He chastises the “gift economy” that has been set up to peddle politicians to the highest bidder, and bemoans that fund-raising has become “a central activity of Congressmen.” Fundraising, rather than being a barometer of support, has turned into a competition of who can cozy up to more benefactors. Money has commoditized influence over politicians so the wealthy can tilt policy making in their favor, through the cultivation of an overpowering sense of obligation from politician to patron.

Ultimately, SuperPACs and lobbying are just two versions of the same phenomenon: a tight grip on politics by the wealthy. Whatever a corporation’s demographic, it’s most likely a rich syndicate that’s running the show, and a company’s contributions to political campaigns will ultimately drive their interests. Lobbying is the same concept, but is more covert than independent campaigns, and is a subtler rendition of a quid pro quo bribery culture that once heavily populated American politics.

This cash-centric American political dynamic is a sharp departure from the country's founding ideals. The Constitution attempts to foil money’s possible domination of politics by barring gift-giving to politicians, and fixing a congressman’s term at two years to keep him close to the people (Federalist 57 waxes eloquent on this). And while the federal court has ruled the Montana law antithetical to the First Amendment, the court's interpretation becomes muddled when you consider the purpose of the Founders’ words. Since the first Constitutional Convention over 200 years ago, money has found pathways to seep into politics—and indeed, intensify its role.

Lessig  sees that we need to mend this, and rightly so. He puts forth four steps for crafting a better legal framework. One of them – that Congress could pass legislation to reform campaign spending – was injured by the Citizens United decision, and salted over this week. Lessig himself sanctions a more radical measure: reforming campaign laws at a second Constitutional Convention, a suggestion some critics ridicule, more balk at, and others call implausible.

But with gradual legislative holes that have left the politics-cash dynamic unchecked, maybe it’s time for just that.