Montana SupCo clears way for ballot initiative on corporate election spending

Monique Merrill

(CN) — A Montana ballot initiative aimed at keeping corporate money out of elections cleared a roadblock after the Montana Supreme Court rejected the attorney general’s effort to disqualify it.

Jeff Mangan, a former state commissioner of political practices, submitted Ballot Issue Nine, seeking to add a new section to the Montana Constitution to clarify that corporations or other “artificial persons” would not have the power to expend money or anything of value to influence the outcome of an election.

In March, Attorney General Knudsen deemed the ballot issue legally insufficient. Mangan and the Transparent Election Initiative challenged Knudsen’s disqualification of the proposal and on Friday, the Montana Supreme Court agreed.

Knudsen had previously rejected an earlier version of the initiative, Ballot Issue Four, finding that it violated the separate vote requirement of the state Constitution. The state Supreme Court agreed then, prompting Mangan to return with Ballot Issue Nine.

Knudsen rejected the new initiative under the same reasoning as the previous attempt. This time, the Supreme Court said he had made a mistake.

The Montana Constitution requires that if more than one amendment is proposed in an election, each must be able to be voted on separately.

Knudsen rejected Ballot Issue Nine on those grounds, determining that adding a new section to Article XIII counted as a change in and of itself, as well as containing two other changes: limiting the powers of artificial persons and altering the scope of what constitutes an artificial person.

Knudsen also argued the ballot issue implicitly amends other sections of the state Constitution and contended the changes are not closely related to each other, which violates the Montana’s separate vote provision.

Siding with the Transparent Election Initiative, Montana’s highest court agreed that a constitutional initiative that adds a new matter “does not make two changes simply because the new matter has operative content.”

“So although the attorney general considers BI-9’s addition of new material to the Montana Constitution and BI-9’s limiting the powers of artificial persons to be two changes, they are in fact one and the same: the new material that BI-9 would add limits the powers of artificial persons as specified within the language of the initiative,” wrote Supreme Court Justice James Shea on behalf of the majority.

Turning to whether the initiative violates the separate vote requirement, the court again concluded Knudsen got it wrong.

Knudsen asserted voters should be allowed to vote separately on whether the prohibition on political spending should extend to entities beyond corporations. The initiative would bar any entity whose existence is conferred by Montana law and is authorized to transact business or hold property in the state from electoral spending.

To Knudsen, this language would extend the prohibition to nonprofits, religious organizations, trade associations, labor unions and partnerships — and he argued Montana voters should be able to separately vote on whether to limit those entities.

The Montana Supreme Court was not convinced.

“We cannot envision how one could bar entities from expending money to influence election outcomes without also specifying which entities would be so barred,” Shea wrote. “The mere fact that the category could have been narrower, or broader, does not in and of itself constitute a requirement for a separate vote.”

In finding the ballot issue is legally sufficient, the court ordered Knudsen to prepare a ballot statement within five days.

Not everyone on the court agreed with the holding. In a dissent, Montana Supreme Court Justice Cory Swanson called the ballot issue “staggering in its scope and breadth of constitutional changes” that goes beyond merely attempting to limit non-human entities from using money to influence election outcomes. Montana Supreme Court Justice Jim Rice agreed with Swanson.

Ballot Issue Nine isn’t the only submission seeking to limit corporate spending in Montana elections this year. Ballot Issue 10, also proposed by the Transparent Election Initiative, cleared a legal challenge earlier this year. Called “The Montana Plan,” Ballot Issue 10 is proposed as an act rather than a constitutional amendment, though it has the same aim as Ballot Issue Nine.

The Montana Supreme Court dismissed a constitutional challenge to Ballot Issue 10 in April, finding Montanans have a right to go through the initiative process.

Neither Knudsen nor the Transparent Election Initiative responded to a request for comment before press time.