Montana Plans To Override The Citizens United Decision

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What I don’t know about Montana would fill a small library. I have written about the state of Montana a few times, mostly because of the legal battles that have been taken up recently about honoring the language in Article IX of the state’s constitution entitled Environment And Natural Resources. In Section 1 it says:

• The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
• The legislature shall provide for the administration and enforcement of this duty.
• The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

That is the sort of language a “woke” kind of person like me can proudly endorse. But Montana also has a large fossil fuel industry. It has significant oil and gas production, mainly from the Bakken Formation in the northeast, and has the largest coal reserves in the US. It is no surprise, then, that economic concerns often conflict with the environmental policy set forth in the state’s constitution.

Recently, the Montana Supreme Court ruled the constitution means precisely what it says when it ruled the public’s right to a clean and healthful environment under Montana’s constitution was violated when the state legislature passed a law removing the impacts of greenhouse gas emissions from environmental reviews under the Montana Environmental Policy Act.

Montana is known as a so-called “red state,” because in national elections its citizens vote consistently in favor of Republican candidates. But that doesn’t mean Montanans are supportive of everything the Republican Party stands for. They tend to be “leave me alone and I will leave you alone” people who are suspicious of big government.

They especially resent being told what to do by faceless bureaucrats half a continent away in Washington. There is a streak of good old fashioned cussedness about them that leads them to chart their own course through life, regardless of conventional wisdom.

Montana May Oppose Citizens United

According to Truthout, Montana is about to become the first state to oppose the 2010 Citizens United decision by the Supreme Court by using a 2026 ballot initiative — an innovative legal maneuver that could be adopted by other states. The idea is wildly popular. A poll conducted last month by a pro-democracy group known at Issue One found that 74 percent of voters in Montana, including majorities of Republicans and Independents, support the ballot initiative.

For background, in its Citizens United decision, the US Supreme Court effectively ruled that Congress cannot limit the influx of money into political campaigns in any way. It also conferred “personhood” upon corporations, which meant that they were now free to spend as much as they wanted to get candidates who were friendly to their interests elected.

The ruling in that case was about corporate donations, but since corporations are more powerful than people, it effectively put an end to the idea that is at the heart of the US Constitution — that people are the holders of the nation’s sovereign power, not monarchs, oligarchs, or corporations.

Tom Moore, a senior fellow at the Center for American Progress, argues that states have the legal authority to define corporate charters. That means they can redraw them at any time. “The states’ authority is absolute in terms of how they define their corporations and which powers they decide to give their corporations,” he told Truthout recently.

The Montana Plan

He shared his thinking with Jeff Mangan, the commissioner of political practices for Montana, who liked it so much, he launched the Transparent Election Initiative to put Moore’s theory into practice. In June, the “The Montana Plan” was created with the objective of putting the Transparent Election Initiative on the ballot in Montana’s next election. The measure asks voters whether or not their state should redefine corporate charters to disallow spending in elections. If passed, it will become part of the Montana constitution.

But wait. Isn’t federal law supreme and doesn’t that mean what the US Supreme Court says is the law of the land? Apparently not, according to Moore. He argues that the amendment wouldn’t overturn the Citizens United ruling, it would merely render the ruling ineffective within Montana because businesses operating in the state would have to abide by its definition of corporate powers.

“It’s a red state, which is useful, I think,” said Moore. The popularity of the idea in what many would consider a bastion of conservative politics makes it possible for “the country to see that it’s not just lefty liberals who don’t like dark and corporate money in their politics.”

Montana has a history of fighting corporate spending and is a fitting state to spearhead the beginning of the end of Citizens United. Since 1912, corporations were banned from spending money to influence elections under the state’s Corrupt Practices Act. A hundred years later, the US Supreme Court overturned that act to ensure compliance with Citizens United. “The people of Montana have not forgotten that,” said Moore. “They are fiercely independent. They don’t like other people coming in and telling them what to think.”

Corporations Are Creatures Of State Law

Here’s the crux of Moore’s argument. In order for the Supreme Court to override the desires of Montana voters, it would have to rule that states do not have the right to define corporations. “This is foundational corporation law. If you start pulling the foundation blocks out from the building, it could really destabilize American business. I don’t think they want to do that,” he said.

The ballot initiative would not overturn Citizens United. If passed, it would merely render the ruling ineffective within Montana because businesses operating in the state would have to abide by its definition of corporations. This makes it immune to national legal challenges and the whims of a Supreme Court that’s even more conservative than its 2010 iteration. “This isn’t a regulation,” said Mangan, “it’s a different way of looking at transparency under First Amendment grounds.”

Who cares what Montana does, right? Actually, if even one state passes a ballot initiative like this, it could embolden voters in other states to do so as well. Moore explained that in almost every state, “no out-of-state corporation can exercise any power in the state that a domestic corporation can’t exercise. What that means is, if you’re in Montana and you pass this, your corporations are out [of political spending] everywhere. But it also means that 49 states worth of out-of-state corporations also can’t spend in your politics. Because if you no longer give the power to your domestic guys, then out-of-state corporations don’t have that power either.”

Getting Organized

The Transparent Election Initiative is conducting a wide ranging signature-gathering effort all across Montana to get the initiative on the 2026 ballot. It can expect lots of out of state money — made possible by Citizens United — to pour in to defeat the initiative. There will be court challenges, bloviating on Faux News, FUD from right-wing social media claiming that if it passes, Haitian immigrants will be eating cats and dogs in Missoula and liberals will be operating child pornography clubs in the basements of pizza parlors in Billings.

Moore is among many volunteers working to make sure the Montana Plan makes it onto the 2026 ballot. “I am excited about gathering signatures because this is something that the voters on both sides agree with,” she said.

It’s not just Montanans who are disgusted with the way in which corporate spending has taken over the nation’s elections, Truthout says. More political candidates are saying no to corporate money “as a mark of pride and authenticity, and proof that they are unbought by special interests. Nearly 80 percent of Americans believe that outside spending on elections is corrupting or gives the appearance of corruption.” That includes a majority of Republicans and Independent voters.

Tom Moore said he is already working with several other states on ballot initiatives and legislation similar to the Montana Plan. “I think it’s gonna end up moving in a number of states very quickly. If it gets on the ballot anywhere in the country, it will pass. This is wildly popular. It’s one of the few issues that … truly unites Americans these days. They would really like to get their politics back. … This actually gives people some hope. It gives them some agency.”

The Fight Is Just Beginning

CleanTechnica readers, being well above average, know there is a lot of ground for the Montana Plan to cover before it succeeds — if it ever does. Today’s so-called conservatives are all for states rights except when it prevents them from ramming the fist of federal power down the throats of the rubes in the hinterlands. Then they are all about flexing their muscles and force feeding their hateful stew of grievance, racism, and abject cruelty to anyone who dares stand in their way.

If this idea makes it onto the ballot in Montana, it will set up a titanic struggle between MAGA and those who are actually capable of rational thought. Imagine for a moment that California decided to make its exhaust emissions standards part of the corporate charter of all corporations doing business in the Golden State. Or a state could mandate that corporations adhere to ESG and diversity standards. Is that far fetched? Perhaps, but in the existential struggle between the forces of darkness and light playing out all across America today, anything is possible.

Citizens United is why the federal government is now a vassal of the fossil fuel industry. More than ever before, oil, gas, and coal companies are the government and the people are on the outside looking in. Someone has to tell John Roberts and his radical conservative fellow travelers to take their Citizens United decision and shove it. Montana may just be the place for that to happen.