HELENA — The organization proposing a ballot initiative intended to keep corporations from spending money in Montana elections says it’s ready to start gathering signatures for one version of its proposal – even as legal action continues on another version.
Last June, the Transparent Election Initiative announced what it calls “The Montana Plan,” an attempt to go around the federal Citizens United decision by redefining the powers of corporations and other “artificial persons” to exclude spending money in elections.
(Watch the video for more on what's next for the proposed ballot initiatives.)
After the Montana Supreme Court rejected TEI’s first proposed ballot initiative, they submitted two new versions. This week, Attorney General Austin Knudsen’s office ruled the first – a statutory initiative now named Initiative 194 – could move forward, but that the second – a constitutional amendment with the temporary title Ballot Issue #9 – was legally insufficient.
Jeff Mangan, TEI’s founder and president, told MTN Thursday that they would file suit to try to revive BI-9, but that they’d begin gathering signatures as soon as this weekend on a petition to get I-194 on the November ballot.
“Everything is still literally on the table,” he said. “The difference is folks are going to be excited because they actually have something to sign; we're out of this waiting game.”
For almost 100 years, Montana had a state ban against political spending by corporations. However, in the wake of the Citizens United decision, the U.S. Supreme Court struck that law down in 2012. The effect of the court’s decisions has essentially been to allow corporations, unions and other organizations to make unlimited political expenditures as long as they are officially independent of a campaign.
TEI argues states have the authority to limit what powers they grant “artificial persons,” so Montana can redefine those granted powers to exclude political spending. I-194 and BI-9 each seek to do that, and they say any entity that spends in violation of that direction will forfeit its privileges under state law and have to get in compliance before asking for reinstatement.
Knudsen’s office ruled BI-9 was a “repackaging” of TEI’s original proposal, and that it still violated a requirement that any proposed constitutional amendment only make one substantial change to the Montana Constitution.
A statutory initiative – which only changes state law, not the constitution – doesn’t need to meet that requirement. However, they are less permanent, because the Montana Legislature can amend them without going back to the voters. Mangan said that’s why TEI is still interested in keeping the constitutional amendment alive.
“It's a stronger method of placing it in, enshrined in our law,” he said. “If it's in our constitution, it's harder for the Legislature or future legislators to tinker with.”
A statutory initiative also requires fewer signatures in order to get on the ballot. In order for I-194 to qualify, TEI will need signatures from at least 30,121 registered voters, including a minimum number in at least 34 of Montana’s 100 state legislative districts. A constitutional amendment like BI-9 would require 60,241 signatures and a minimum number in 40 districts.
While the Attorney General’s office allowed I-194 to move forward to signature gathering, they also included a note, warning that the measure could cause “significant material harm” for businesses if voters approve it. Brent Mead, a deputy solicitor general who wrote the finding of legal sufficiency, wrote that a corporation could violate the spending requirement unintentionally – especially because the initiative applies to “anything of value” that could affect an election.
“A person can look through the records of decisions from the Montana Commissioner of Political Practices and find numerous examples of inadvertent errors in campaign finance reporting,” Mead wrote. “Those inadvertent errors now become a trap whereby an unwary business, non-profit, or association risks the severe sanction of having their charter immediately revoked.”
Mangan disagreed with that reasoning.
“We just remind people that basically the same process was in place from 1912 to 2010, for 98 years,” he said. “And no material harm came to any business because they weren't able to spend in our elections.”
Mangan acknowledged, if their plan does move forward, it is still likely to face litigation.
