The Montana Supreme Court won praise for its recitation of history in its recent corporate finance case, Western Tradition Partnership v. Attorney General (later called American Tradition Partnership v. Bulloch).
But that was before anyone bothered to check the court’s version of history.
Earlier this year, five of the seven state justices held that Montana’s “unique” history of corporate electoral corruption and domination gave Montana government the “compelling governmental interest” needed to abridge First Amendment rights—a compelling interest not present in other states. The justices therefore refused to apply the U.S. Supreme Court’s Citizens United decision, which normally protects the right of associations to campaign independently for and against candidates. Instead, the Montana court upheld a state statute censoring corporate campaign speech.
But neither the U.S. Supreme Court nor anyone else seem to have questioned the Montana tribunal’s historical claims. A large portion of my professional work is as a legal historian. Earlier this year, I undertook an extensive library fact-check of the court’s claims. I summarized some (although not all) of my conclusions in a published paper. What I learned was that, in the phrase of one writer who reviewed my findings, the Montana Supreme Court had been guilty of promulgating “junk history.”
Here’s a quick summary of my principal findings—some previously unpublished:
First, while claiming that incidents of corporate campaign corruption were once widespread in Montana, the court cited only two events, both over 100 years old. Both turn out to be irrelevant to the claim that Montana has a unique history of corporate electoral corruption. One was the alleged bribery of a pair of district court judges, which had absolutely nothing to do with campaigns or elections. The incident was never proved, and it’s not even clear that corporate money was involved.
The other was a candidate’s bribery of state legislators in a 1899 (!) U.S. Senate election. The U.S. Senate committee report on the incident described only bribery by individuals, not by corporations. The episode did not involve independent expenditures and was not unique to Montana, since similar episodes throughout the country soon led to adoption of the Seventeenth Amendment.
Second: The Montana Supreme Court failed to cite a single dispassionate historian for its conclusions. In investigating the backgrounds of the writers it did cite, I found that all but one of those writers were personally involved in state government as employees, politicians, family members of politicians, political activists, lobbyists, or several of the above. All of those had personal interests in the subject and apparent reasons to dislike the perceived conservatism of business corporations. All wrote either from either a “progressive” or (in one case) from a socialist point of view. The one writer who had not been involved personally was a “progressive” journalist, not a historian, and had no pretense of objectivity.
Third: The authors of the books relied on generally disregarded normal historical practice by failing to cite sources. Their footnotes ranged from few to almost non-existent. The writer relied on most heavily by the court was K. Ross Toole, whose relevant chapters were largely based (often word-for-word) on his Ph.D. thesis. This thesis was essentially a youthful assault on the Anaconda Company—a company that, although it provided high-paying jobs to thousands of Montanans, Toole was convinced was an institution of conservative evil.
I compared the relevant footnotes in Toole’s thesis with the actual newspaper articles they cited. I found that nearly two thirds of the notes were defective. The sources referred to often did not support the claims in the text. I was forced to conclude that Toole’s primary interest was his story, with historical method a secondary consideration.
Fourth: The Montana Supreme Court claimed that after the Copper Wars at the turn of the last century the Anaconda Company absolutely dominated the state. But the court’s own sources are contradictory on that point. For example, one of those sources (Malone & Roeder) claims absolute Anaconda domination on one page and then celebrates numerous state “progressive” victories over Anaconda a few pages later. The book never explains how the “progressives” could have been so successful if Anaconda had such a lock on the state.
(A more balanced view is that while Anaconda influence was considerable in Montana for much of the 20th century, Anaconda lost many battles as well, as the election returns demonstrate.)
Finally: In upholding the state law censoring corporate speech, the Montana Supreme Court claimed that the law was enacted to end “This naked corporate manipulation of the very government. . .” But there is no way the court could have known this. The books it cited provided little information on the law or its reasons for passage. According to contemporaneous newspaper articles, the text as passed (possibly now lost) was quite different from the version on the books today. The court cited no campaign materials, and the newspaper reports (which the court didn’t cite either) are uninformative on the reasons for the measure.
Moreover, a real purpose behind the law may have been to increase, not reduce, Anaconda Company influence, since it curbed the campaigning of other corporations while leaving Anaconda-owned newspapers exempt.
It appears, in other words, that the Montana Supreme Court was guilty of what professional historians contemptuously call “law office legal history”— the selective use of isolated and questionable “facts” to promote a case.
Law-office history can make good reading, but never confuse it with real history.