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Montana Supreme Court rules that I-166 can stay on November ballot

By   /   August 10, 2012  /   No Comments

HELENA – Initiative 166 will stay on the ballot. Or so says the state’s top judges.

But the fight is apparently not over, as those wanting to block the initiative now couched as a tug-of-war over freedom of speech and corporate money in elections say the battle will go on in another courtroom.

The Supreme Court on Friday denied a petition filed against the attorney general and secretary of state, challenging the legality of ballot issue I-166, that would have Montana’s congressmen seek an amendment to the U.S. Constitution to prohibit corporations from making campaign donations.

“The petition does not allege nor does this Court find that the petition was legally insufficient as to the requirements for submission of a proposed ballot issue,” Chief Justice Mike McGrath wrote.

Justice James C. Nelson was the lone dissenting vote in the petition filed July 23 by Montanans Opposed to I-166, state Sen. Dave Lewis, R-Helena and businessman Phil Lilleberg.

“I agree, rather, with the arguments of Petitioners and would order the Secretary of State not to place I-166 on the 2012 general election ballot or, if the ballots have already been printed with the measure, not  to count the votes,” Nelson wrote in his opinion, peppered with colorful observations.

However, an attorney for the plaintiffs who wanted the measure struck from the ballot said the battle now moves to District Court in Fergus County as a separate lawsuit challenging 1-166 was filed there Friday within hours of the Supreme Court decision.

“Justice Nelson gets it right again,” said James Brown, an attorney who filed the court petition against I-166. “He is absolutely right in that the statute requires the attorney general cannot allow a ballot initiative clearly unconstitutional on its face to go to a vote.”

Backers of 1-166 heralded the majority decision, calling the lawsuit “frivolous” and a “cynical” attempt to block a vote by the people.

They issued a statement Friday afternoon.

“This frivolous lawsuit was nothing more than corporate hired guns trying to deny the people of Montana a chance to vote on a citizen initiative, one that clearly states corporations aren’t people and money is not speech,” said C.B. Pearson, campaign treasurer, Stand with Montanans: Corporations Aren’t People – Ban Corporate Campaign Spending. “Thankfully, the Montana Supreme Court recognized that this lawsuit was a cynical attempt by opponents to block a vote on one of the most important issues of our time.”

Brown cited the court’s opinion in deciding to move the case to District Court. In a separate consensus opinion, Justice Beth Baker wrote that petitioners may proceed by filing a complaint for declaratory judgment in district court and “that process is better suited for the development and informed consideration of constitutional questions such as those raised in the petition.

“I do not read the Court’s decision today to foreclose such a challenge if the measure is approved in the general election,” Baker wrote.

Nelson said the congressional delegation’ had little chances of getting a constitutional amendment passed.

Or, as he put it: “Congress has less of a chance at success than the proverbial snowball has of surviving in Hades.”

He called 1-166 “at bottom, simply a feel-good exercise exhibiting contempt for the federal government and, particularly, the United States Supreme Court. Obviously, corporations are not ‘human beings,’ and the fact that Montana voters may (or may not) have heartburn with the notion of corporations as ‘persons’ imbued with constitutional rights is largely  irrelevant. Make no mistake, I share the pain of my fellow Montanans … But the I-166 exercise—at least that portion of the initiative directing Montana’s elected and appointed officials how to act at the state level—is not going to alter these  concepts at the federal level or in our sister states.”

In other observations, Nelson noted if the constitutional amendment were passed it would likely alter freedom of speech definitions within the First Amendment.

“Personally, I like the First Amendment the way it is, and I would not want anyone — especially a politically polarized and dysfunctional Congress—tinkering with it. God only knows what might come out of that effort,” he wrote.

He warns the the “I-166 exercise, even if adopted,  cannot change federal law; it does not change state law; and it does not change the law of  any sister state.  Rather, the I-166 exercise simply does into the wind what most Montana children learn to avoid early in life.”

On Feb. 28, Stand With Montanans, launched a campaign and filed language with the Montana Secretary of State to place a citizen initiative on the November ballot.

Pearson said Friday these “secretive, large out-of-state corporate interests have contempt for Montana voters and our fair elections system. They don’t believe Montana voters should have a say in how our elections are funded and run, and they think big, unlimited, secret money should be allowed to buy our elections.  They won’t say who is funding their campaign or this lawsuit.”

The Prohibition on Corporate Contributions and Expenditures in Montana Elections Act, also known as I-166, that would have Montana’s congressional delegation lead colleagues to offer an amendment to the U.S. Constitution that corporations are not entitled to constitutional rights.

According to the Supreme Court decision, opponents of the measure argued  ”the ballot statements do not comply with law and that the Attorney General should not have approved them. They also contend that the initiative itself is unlawful on several grounds including that it is a  resolution and not a law; that it improperly amends the Montana Constitution; and that it improperly directs elected representatives how to vote.” The court noted they sued under a provision that allows opponents of a ballot issue to “contest the adequacy of the explanatory statements and of the Attorney General’s determination of legal sufficiency.”

The original petition stated: “At best, I-166 is an odd mixture of resolution, law, constitutional amendment and revision and, as such, is not properly before the people for their vote.  I-166 is quite simply put, a sham or poll presented in a manner not comporting with law.”

Attorney General Steve Bullock, who is now running as a Democratic candidate for governor, was named in the petition because he is “statutorily responsible for making a determination of legal sufficiency for I-166 and approving the statements,” according to the plaintiffs’ attorneys. Secretary of State Linda McCulloch was named because she is “responsible for approval or rejection of petitions submitted as a proposed ballot measure.”

Banning corporate contributions in elections goes back to 1912, when voters approved the Corrupt Practices Act.

In 2010, the U.S. Supreme Court prohibited federal regulations on corporate campaign expenditures and a Montana District Court ruled Montana’s law was unconstitutional. Then in 2011, the state Supreme Court upheld the act. Then in February, the U.S. Supreme Court stayed the Montana Supreme Court decision. The ruling allows corporations to now spend unlimited amounts of money in independent expenses on state and local political races in Montana.

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Phil Drake