Citizens United Decision Faces Challenge From Montana

As so many predicted, even feared the 2010 Citizen’s United SCOTUS decision effectively gutted campaign finance laws, opening up a flood of money giving super rich people and corporations a huge advantage in getting the candidates they wanted into political office. When you think about it corporations don’t have to have secret meetings to collude, pretty much all of them are against regulations and paying taxes. For the most part that favors Republicans which is why five GOP Justices voted in favor of the infamous ruling. While Unions are as free as corporations to spend however much they want, practically speaking there aren’t enough large ones to match the political spending power of Corporate America. With the spending limits gone and worse, conservatives now having six instead of five seats on the Court overturning Citizens United has seemed like a pipe dream. However Montana (and other states) might have found a workaround.

How we got to this is more complicated than the Citizens United decision. Campaign Finance laws were already on life support and Justice Kennedy’s majority opinion pulled the plug. Many assume Chief Justice Roberts wrote it and frankly his attitude permeates the ruling but I suppose he was still dreaming of a positive legacy so he dumped his dirty work on Justice Anthony Kennedy. In any case SCOTUS seems to have locked up the possibility of Congress placing limits on campaign donation limits in a vault. As this article from the Washington Examiner explains the state of Montana might have the key/combination to opening it up again.

I found myself in the middle of writing one of my detailed, in-the-weeds articles and realized going into SCOTUS decisions regarding corporations going back to the 1800s and attempts in my lifetime to regulate donations to political candidates and/or Parties would make your eyes glaze over.  What it all boils down to are the following:

• One person – one vote is an ideal, but starting with the creation of the Electoral College it’s never been truly the case, at least when it comes to Presidential elections.
• In modern times, particularly in the lifetime of anyone reading this it’s almost always taken a lot of money to run for office. The higher the office, the more it takes and these days the amounts are staggering.
• Some people have far more money to donate than most of us. Often they donate because they’d got an agenda, one that frequently doesn’t align with most people’s needs. This matters because especially at the federal level office holders spend hours every day raising money. And let’s face it – those who donate far more than you or I can get access to the politicians the average person almost never gets.
• Going back (as I said) to the 1800s corporations have been granted a form of personhood status by SCOTUS. It’s not as evil as you might assume. Decisions tended to focus on ensuring corporations could do things an individual person would such as enter into contracts, or file lawsuits AND also be sued themselves.  So, giving corporations some of the rights and responsibilities individuals have makes sense. Or used to.
• Eventually SCOTUS granted the full range of rights to corporations as individuals. Basically, corporations are people.
• Candidates (increasingly conservative ones but Democrats too) have chafed under the notion of limits on how much any one person or entity (be it a married couple or a corporation) can donate.  That led to a SCOTUS ruling that to put it in blunt terms is called ‘Money Equals Speech’ and in free speech covered by the 1st Amendment. Ergo limiting donations violates free speech.
• Pretty much every every campaign finance law that’s been enacted going back to the 1970s has been whittled down by SCOTUS and as I said Citizens United seemingly shut down Congress’ ability to pass new legislation – it’s clear they’d rule any such law unconstitutional.

Ok, that’s still a lot to consider and I did the best I could to distill it but mash all that together and in the end between “money is speech” and “corporations are people” it would seem to be a waste of time and effort for Congress Critters who agree the system is broken, that big money donors have WAY too much ability to affect elections.  Anything they could pass, even with a President who’d sign it into law will have SCOTUS rule it’s unconstitutional to place any limits on how much can be donated.

However as the linked article points out at the state level there exists the possibility of a workaround and it might be a RED state that leads the way:

When political analysts look at Montana, they see a reliable stronghold of the modern Republican Party. This is a state that President Donald Trump carried by nearly 20 percentage points in 2024, a place where conservative populism runs deep in the soil. Yet, grassroots advocates are looking to the state’s unique political heritage to advance proposals that could radically alter the political landscape. Under Initiative 194, also known as “The Montana Plan,” voters will decide whether to completely bar corporations, labor unions, and other artificial legal entities from spending money on state elections, testing whether local frameworks can withstand national scrutiny.

If you’re like me your reaction is something like ‘What? Montana?’ Yes, as noted it’s a quite conservative state but it’s also one with people who have a strong independent streak when it comes to policy. I don’t recall the particulars but a significant challenge to restriction access to abortion happened there. And, as I said there’s a sense of people should get equal treatment and it seems many know the history of their own state:

But to anyone familiar with Montana’s history, it makes perfect sense. This is a state where corporate “robber barons” once ran wild, buying judges and legislatures during the Copper King era of the early 20th century. Montanans have a long, proud history of fierce institutional skepticism toward money in politics. Now, they are using that history to pioneer a novel legal strategy that could trigger a national domino effect.

Again, ever since the landmark 2010 Citizens United v FEC ruling Congress has faced a brick wall (or locked vault) when it comes to enacting campaign finance restrictions. What had become by that point a fire hose of money into politics became a giant river flooding everything as far as the eye can see. Unlimited donations and spending that too often drown out candidates who actually want to work to make this country better.  A workaround has been lacking, at least until now:

Rather than challenging Citizens United head-on, a strategy doomed to fail before the current conservative supermajority, this new approach attacks the problem from the flank. It shifts the legal battlefield from corporate rights to corporate powers. Under the 10th Amendment, state governments possess the absolute authority to charter corporations and define the legal scope of what those “artificial persons” are allowed to do. Proponents argue that while a person has an inherent right to free speech, a corporation only has the powers granted to it by the state. By stripping political spending from the approved list of corporate powers, advocates are testing whether states can regulate the entity itself, rather than the speech.

The linked article says conservatives are terrified and I’m sure they are. However it gives me warm fuzzies to think none of them are more terrified than Chief Justice Roberts. This issue and gutting voting rights for non-white people have been his passion. His life’s work. If this Montana initiative becomes law (and again, variations of this corporate charter-power strategy are active or under consideration in more than 30 states) it’s a whole new ballgame.  Think of it like this – the so-called justification for ruling that campaign donations can’t be regulated flows from the ‘corporations are persons’ (not have ‘personhood’ as was established in the 1800s) so limiting donations violates the first amendment. However the Constitution didn’t address corporations when it was ratified, which brings us to the Bill of Rights and the TENTH Amendment which plainly states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The specific power to charter corporations is vested by the states, not Congress, the federal government or the Constitution.  States are therefore able to define ‘personhood’ and if a state says it doesn’t include a corporation having the right to donate unlimited sums of money then Roberts and his five fellow Federalist Society GROOMED Fascists will be facing a Hobson’s Choice when this makes it to them.  They can either give in and open the door to revisiting Citizens United or invent new law saying the 10th Amendment itself is unconstitutional.

Ok, they might not put it that way but one could argue RED states are more invested in the 10th Amendment than blue ones. But on this there is genuine bipartisanship as those thirty states I referred to include both red and blue states. However both at the federal level (including the courts and SCOTUS) conservatives/red states have a bedrock belief that there are limits to what the federal government can tell them to do.  Just look at what happened when Roe was overturned!  Conservative states got their wish of being able to set their own rules but if SCOTUS steps in on campaign finance with even conservative states like Montana saying ‘there have to be limits’ then the door is open to revisiting THAT issue!  Like I said, it would be a no-win situation as far as Roberts is concerned.

Yes, I’m a fierce advocate of the 1st Amendment including free speech. However I’ve never agreed that money equals speech. Instead I believe more money than most people have means being able to shout louder and longer. To dominate the conversation and therefore policy. The term ‘compelling interest’ sometimes comes up in court rulings including from SCOTUS and while they’ve (correctly) kept it as broad as possible due to ‘compelling interest’ even free speech comes with some limits. The old ‘You can’t shout fire in a crowded theater’ comes to mind. As far as I’m concerned ensuring a relative handful of individuals whether they be actual human beings or a corporation can’t drown out dissent with unlimited donations/spending on candidates is a compelling interest.

That means leveling the playing field. Ensuring not only that the source of every dollar donated to a candidate or Party be readily available, but also placing reasonable limits on how much can be donated to a given candidate or Party in a single year.  I don’t care who leads the charge. In fact having a ruby red state do so is the best bet to force Roberts/SCOTUS to once again allow some limits via campaign finance law. Law which has some teeth to punish those who violate it.

Some creativity has been sorely needed and now we have it. I urge you to read the linked article. It’s worth the time, as it’s conclusion sums up what could be coming:

When voters evaluate these innovative proposals, they are participating in a broader conversation that extends far beyond any single jurisdiction. If these measures gain traction, they will provide an immediate road map for dozens of other states waiting on the sidelines. It will force a definitive, historic reckoning at the Supreme Court over the limits of corporate power.

For decades, people have resigned themselves to the idea that nothing can be done about the corrupting influence of dark money in our democracy. By looking backward to populist roots, states such as Montana may have just found the legal key to unlocking a fairer political future for the entire nation.

If you made it to this point I thank you for sticking with it.  I keep saying contact your Congress Critters but now I’ll add asking you to contact your state legislators to weigh in on this.  And yes, I know this got kind of long but trust me when I say I scrapped the original version which was longer and not yet done to write this!

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