The Montana Supreme Court won praise for its use of history in the corporate finance case, Western Tradition Partnership v. Attorney General, a decision subsequently reversed by the U.S. Supreme Court.
But the Montana court’s “history” was weak, to say the least. One writer called it “junk history” here.
Last year, I did an extensive library fact-check of the Montana court’s claims. I summarized some (although not all) of my conclusions in a published paper.
Here’s a quick summary of my principal findings:
First, while claiming that corporate campaign corruption was once widespread in Montana, the justices cited only two events, both over 100 years old. Both were 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 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 court relied on books that failed to follow normal historical practice in citing sources. Their footnotes ranged from few to almost non-existent. The writer relied on most heavily was K. Ross Toole, whose relevant chapters were largely based (often word-for-word) on his Ph.D. thesis. That Ph.D. thesis was essentially a youthful assault on the Anaconda Company—a company Toole was convinced was an institution of conservative evil.
I compared the relevant footnotes in Toole’s thesis with the actual newspaper articles he cited. I found that nearly two thirds of Toole’s notes were defective. The articles he cited often did not support the claims in the text.
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 (a book by 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 at issue in the case. 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.
The actual effect of the law may have been to increase 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.
* Senior Fellow in Constitutional Jurisprudence,
Independence Institute & Montana Policy Institute
* Professor of Law (ret.), The University of Montana
* biography & bibliography: http://constitution.i2i.org/about/