Dr. John Lott has an op-ed with Montana state representative Greg Overstreet in the Lee Newspapers in Montana including the Butte Montana Standard and the Ravalli Valley Ravalli Republic. Overstreet is a Montana state representative for House District 88.
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You have the right to donate to the candidate you support. You can buy ads in your local newspaper. But what happens when you join your neighbors to advocate for an issue such as access to public lands or high property taxes and form an organization to amplify your voice? But if Montana Initiative 194 passes, the state could effectively prohibit your organization from participating in the political process.
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Montana Initiative 194, which is set to appear on the November ballot, would ban so-called “artificial persons”—including nonprofits, trusts, partnerships, corporations, trade associations, unincorporated associations, and any entity doing business in Montana—from contributing to political campaigns, ballot measure elections, or political parties. Any entity that violates the initiative would lose the right to do business in Montana until it certifies that it has complied with the law.
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The initiative does not treat all organizations equally. It expressly exempts companies that own newspapers, radio stations, and television stations. Those companies can continue publishing news stories and editorials that help one candidate or hurt another, and they can still endorse their preferred candidates—endorsements that candidates highly value. As a result, the initiative would increase the political influence of media companies while restricting the political participation of other organizations.
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The initiative also quite noticeably does not mention labor unions by name. Although its broad definition of “artificial persons” may encompass unions, any dispute over whether the initiative applies to them would ultimately be decided by the Democrat-controlled Montana Supreme Court, so don’t bet on unions being covered.
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Democrats have never accepted the Supreme Court’s 2010 ruling in Citizens United and some on the left have hit on the novel end-run around the First Amendment by redefining what is a corporation.
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The left-wing Center for American Progress developed and popularized this specific legal strategy. It justifies the strategy this way: “When a state exercises its authority to define corporations as entities without the power to spend in politics, it will no longer be relevant to discuss whether the corporations have a right to spend in politics.”
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The initiative would also drag Montana into costly legal battles. The U.S. Supreme Court has already rejected the argument that states can strip people of their First Amendment rights simply because they join together in corporations or other associations. Writing for the majority in Citizens United, Justice Anthony Kennedy explained: “The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”
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But even many liberal Democrats believe these laws go too far. Hawaii recently enacted a similar law, but Hawaii’s Democratic attorney general, Anne Lopez, opposed it, warning that it would be costly to defend and was unlikely to survive constitutional scrutiny.
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Indeed, the Grassroot Institute of Hawaii, represented by the Institute for Free Speech, has already challenged Hawaii’s law in federal court. The lawsuit argues that citizens have a constitutional right to associate and “pool their resources” to make their speech more effective. It also points out that the First Amendment “guarantees that lawmakers cannot pick and choose who gets to speak. Nor can lawmakers condition access to any legal benefit on forfeiting the fundamental right of free political speech.”
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Montanans shouldn’t let the government decide which groups may speak and which must remain silent. Initiative 194 won’t get money out of politics; it would shift power to favored voices while silencing ordinary citizens who organize together. Free speech doesn’t disappear when people join with their neighbors to make themselves heard.to survive a constitutional challenge.
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