Montana voters became the first in the nation Tuesday to sign off on an ambitious plan for banishing political dark money, putting the state on a collision course with the landmark Citizens United ruling.
The ballot initiative, I-194, which passed with 65% support as of Wednesday afternoon, harnesses a novel legal theory in an effort to get around Citizens United v. Federal Election Commission, the 2010 US Supreme Court decision that dismantled corporate campaign finance regulation. Its effect would be a statewide backdoor ban on election spending by the businesses, unions, and nonprofits pouring money into the US political system.
Read More: Dark Money Critics Wield Corporate Law Against Citizens United
The plan’s architect — former FEC lawyer Tom Moore, now with the Center for American Progress — has said he hopes to set up a Supreme Court test case that would catalyze a nationwide push. Striking down the law would come with a “doctrinal price” that even the court’s conservative supermajority would be loath to pay, according to Moore.
“It’s states’ rights versus Citizens United, and the Supreme Court has equities on both sides of that,” he told Bloomberg Law.
Although Montana’s measure was the first to reach voters directly, the state is the second overall to try the maneuver — after Hawaii, where the governor signed similar legislation in May. Rather than directly restricting political spending, the laws would remove that power from the statutes that authorize companies, trade associations, and other “artificial persons” to operate in the first place.
‘Points for Creativity’
Both versions follow a playbook outlined by Moore, who said the strategy is tailor-made to avoid clashing with Citizens United‘s central holding: that corporate election spending is protected by the First Amendment.
“They strike down McCain-Feingold and nobody in the Supreme Court majority loses any sleep over it,” he said, referring to the campaign finance reform law declared unconstitutional by that ruling. But if they have to dismantle “fundamental, foundational” parts of state corporation law, “they’re going to think twice about that,” according to Moore.
Read More: Political Dark Money Limits Clear Hurdles in Hawaii, Montana
Business groups, GOP politicians, and other opponents insist the approach will crash into the high court’s First Amendment jurisprudence and the “unconstitutional conditions” doctrine, which prevents states from hinging the exercise of one right on the surrender of another.
“I think these professors who think they’re going to try to find some quirk of state law to get around Citizens United are going to find a chilly reception at the Supreme Court,” said Jason Torchinsky, a partner at Holtzman Vogel Baran Torchinsky & Josefiak PLLC who specializes in campaign finance law.
The Roberts court has been particularly protective of First Amendment associational rights, Torchinsky said, and isn’t likely to be swayed even if Moore can convince additional states to adopt similar legislation.
“Is it creative? Give them points for creativity. But I think at the end unsuccessful,” he added.
The conservative-dominated Supreme Court has only further loosened campaign finance restrictions since 2010. The court has struck down aggregate limits on how much individual donors can contribute in an election cycle and overturned its own precedent to end limits on coordinated expenditures between political parties and federal candidates.
Corruption Concerns
Although the court’s direction speaks for itself, the new laws still present “a real test,” according to Eric Petry, counsel at the Brennan Center for Justice, which advocates for campaign finance reform.
“The fact that this passed with near-supermajority support in a very red state shows how deeply upset the public is about the role of money in politics,” Petry said. “Sooner or later the court is going to have to reckon with the public’s overwhelming anger at its approach.”
Hawaii’s law, set to take effect July 1, is already being challenged in court by the US Chamber of Commerce and a libertarian think tank. A lawsuit targeting the Montana initiative will probably hit “before the sun goes down,” according to Moore, who said he’s hoping to introduce similar bills in 30 states next year.
Other states can learn from Montana’s example, said Aviam Soifer, the longtime former dean of the University of Hawaii’s law school, who praised the level of legal detail in I-194. He connected Tuesday’s electoral tidal wave to the same corruption concerns animating the push to curtail corporate political spending.
“The campaign in some states was basically against Elon Musk,” Soifer said. “The bipartisan support is encouraging but not surprising.”