- [Stan] Coming up next on "Impact."

Montanans will get their say on a major campaign finance reform proposal.

- The Montana plan simply removes the ability for corporations to spend in our politics.

By removing the corporation's ability to spend in our politics, we end dark money.

Simple as that.

- [Stan] We'll break down the arguments for and against the Montana plan.

- This is clearly an attack on the First Amendment.

It's an attack on free speech because it's literally a ban on political speech and political speech is the most important kind of political speech protected by the First Amendment.

- And then share an overview of the two proposed constitutional amendments on the ballot, CI-132 and CI-133.

This is an election extra edition of "Impact" from Montana PBS Reports, and all that is straight ahead.

Stay with us.

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Funding also comes from viewers like you who are friends of Montana PBS, thank you.

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(screen whooshes) Jeff Mangan is a man with a plan.

It's called the Montana Plan.

- The Montana Plan simply removes the ability for corporations to spend in our politics.

By removing the corporation's ability to spend in our politics, we end dark money.

Simple as that.

And when we say spend in our politics, we mean to support or oppose a candidate or a ballot issue.

- The proposal is on the ballot this fall as Initiative 194.

In a time when there's more political spending than ever before, it's a push that's resonating with voters like Nathan Kommers, who came to hear about it at a talk in Belgrade.

- Most people I talk to when they hear about the prospect of getting dark money out of elections are in favor of it.

I think that it makes sense to almost everybody.

- [Stan] The plan has its share of critics too.

- This is unconstitutional.

All it's going to do is waste the state's money having to litigate this.

- It's designed to eliminate a lot of the big money that is operating in Montana's political system.

Unfortunately, the Montana plan, I-194, doesn't do that.

- We'll dive into the criticisms later.

First, let's lay out the details of what the plan hopes to address and how it plans to work, starting with some definitions.

There's a category of political spending that has grown dramatically in recent years, independent expenditures.

That refers to spending by outside groups that aren't allowed to coordinate with official campaigns.

So we're not talking about money given directly to campaigns.

There are already strict limits on those.

Since 2010, when the US Supreme Court removed all limits on independent expenditures and the Citizens United decision, outside spending has surged from around $200 million per election to more than $4 billion in 2024.

And that's just in federal races.

Those dollars are spent by PACs and super PACs.

PACS stands for Political Action Committee.

These entities are already regulated and the Montana plan would largely leave them to do their business with one important exception, who they can receive their money from.

Super PACs get a lot of money from corporations, both for-profit and nonprofit groups.

I'll let Mangan take it from here.

- Currently, all corporations are provided a charter by the state of Montana that gives them all general powers.

What the Montana Plan does is it uses the state's authority under the 10th Amendment because states create their corporations.

We provide them, we tell them what powers that they have.

We just haven't changed it in 100 years.

We're going in simply, we're going to give a corporation all the powers they currently have, limited liability, ability to hire and fire employees, own property, sue and get sued, et cetera, et cetera, with the exception of one.

And that power is to remove the power to spend in our politics.

The power removed, the right doesn't attach.

It's as if Citizens United is moot in the state of Montana.

- What kind of organizations are affected by I-194?

- It's every corporation.

So a corporation, whether it's a for-profit corporation like a C Corp or an S Corp, LLC, nonprofit corporations, C3s, which are your traditional nonprofit organizations that typically don't spend in politics.

C4s, which have become the nonprofit groups that's been the conduit for dark money, unions are a corporation as are associations, unincorporated associations, et cetera.

So all of those folks that get some type of benefit as an artificial person under the laws of Montana, like limited liability, those type of things are affected.

- Well, you mentioned the ads and I brought my collection with me.

This is just a single household's worth and we're only a few days into the general election.

So most of these are from the primary.

So I thought that maybe when we're here to kind of illustrate how the Montana plan wants to act on this stack and our politics in general, we could take a look at one of these ads and trace as much as we can trace where the money's coming from.

- Perfect.

- So this is a big dramatic one.

This is probably the most high effort one I've seen.

It's got a whole fold out section.

It's about one of the Supreme Court candidates.

And right here it says, "Paid for by Montanans for Freedom and Responsibility."

Looking up a PAC that sent an ad and viewing their finances is something anyone can do at home.

For state races, this information is found on the Commissioner of Political Practices website.

For federal races, it's on the Federal Election Commission website.

For the PAC that sent this ad, we find a donation from a nonprofit group called North Fund and also a couple of big donations from two other PACs, Montana Values Action Fund and Montana Constitution PAC.

- If an individual's looking at, I want to find out who's spending or who's behind Montana's for Freedom, we start there, then we already know what is the North Fund or what is the Montana Constitution PAC or what is the Montana Values Action Fund?

So it could literally be one of those nesting dolls.

Start here, you take off one, another layer, another layer until you can get to, in some cases, the donors or in most cases it's just going to be the name of the C4 or the political action committee that gave them the money.

- So if I wanted to just go up the chain here, I'll just copy Montana Values Action Fund, search committee here, paste it in.

Here Jeff explains that sometimes you have to wade through irrelevant duplicate records to find the right one, a quirk of a system that hasn't been updated recently.

- You're going to have to look for the act.

Yep, right there at the bottom.

You got lucky.

It happened to be at the bottom one.

- Active or amended.

So I'll go straight to the finance reports here.

- Yep, now this where the nesting goes, you can continue going down that rabbit hole.

- And because I did some research ahead of time and so did you, we know that A Better Big Sky is a C4.

And so now if I wanted to look up information about A Better Big Sky, I have to go to their tax records basically.

And that'll show me how much they received, but unless they're - - Unless they voluntarily disclose who their donors are, you're not going to find them.

The Montana Plan will end that.

- So this is where the Montana Plan says A Better Big Sky can no longer make this contribution here.

- Right.

- The other PAC that we saw funding Montana's for Freedom Responsibility was the Montana Constitution PAC.

- Right.

- And when I went to the campaign electronic reporting system for them, I ended up seeing a lot of individual contributions from attorneys in our state.

So if I'm understanding it right, then the Montana Plan says all of those donations can continue because it's traceable to an individual, but all of the stuff that is shielded behind these organizations like North Fund and A Better Big Sky, no more of that?

- Correct.

- The legality of prohibiting this corporate spending is surely going to be tested in court.

And that's something I spoke about with David Knobel.

He's an attorney by trade, active in Republican politics for many years.

- This is clearly an attack on the First Amendment.

It's an attack on free speech.

These types of laws that basically say, "Hey, if you're a business, if you're a Montana LLC, if you're a partnership in Montana, even if you're an unincorporated association," if you're a church group, if you're a community group, any kind of group of people, basically it says, "You can't engage in your free speech rights."

You cannot engage in any kind of political expenditures for ballot initiatives or for candidates.

And those laws have been struck down by the courts as unconstitutional violation of free speech because it's literally a ban on political speech and political speech is the most important kind of political speech protected by the First Amendment.

The Supreme Court's been clear.

- This brings us to probably the most famous court decision on campaign finance, Citizens United.

Decided in 2010, it's often seen as a watershed moment that unleashed a wave of money into election advertising because it removed limits on independent expenditures.

But it's a decision that University of Montana Assistant Law Professor Constance Van Kley says is often misunderstood.

- So the free speech issues in Citizens United go back further to the first real serious attempt by the US Congress to regulate campaign finance in the wake of the Nixon presidency.

So the US Supreme Court ruling on the constitutionality of this first major campaign finance bill says money is speech.

When I spend money in order to engage the voters on a particular issue, I'm engaged in First Amendment activity.

So what a lot of people attribute to Citizens United traces back to Buckley to some degree.

- The whole money is speech thing.

- The whole money is speech thing.

As well as that there will be corporations that engage in speech this way as well.

The idea of corporate personhood was not new to Citizens United.

That existed prior to Citizens United across a wide spectrum of cases.

What is new to Citizens United is the court rejected the idea that one reason that Congress can regulate speech is in order to level the playing field.

- [Stan] Considering these precedents, Knobel argues even if voters approve the Montana plan, it will be short-lived before it gets struck down by a judge.

- There's only downsides and the downsides are mostly costs and expenses for the state in having to deal with this and handle a lawsuit like that.

- The Supreme Court has been very consistent in rebuffing challenges and workarounds to Citizens United.

What makes you think this will be different?

- Because the Supreme Court has not looked, or any court for that matter, but the Supreme Court has not looked at a corporation whose state did not authorize them to have that power in the first place.

They have been... Every case that you just mentioned, whether it be a regulation or a rule or Citizens United for that matter, was a rule on a power the state had already provided that corporation.

They have not reviewed a case where the state has not given that corporation that power.

So it's a whole new playing field.

- Critics like Knobel aren't swayed.

- It's what we call a form over substance argument.

The substance of this is a direct ban on Montanans engaging in free speech.

The form of it comes in this convoluted thing about corporate powers and you only have powers of a corporation set forth by statute, and we're going to put in here that that doesn't include the right to engage in free speech.

Substantively, it's the same thing as a direct ban on free speech.

- But whether the Montana plan holds up in court is only one point of contention.

The Montana Chamber of Commerce opposes the plan because it says it would harm the business community.

President and CEO Todd O'Hair says the chamber has two primary concerns about the initiative.

- One being that with the passage of I-194, businesses will be left naked to defend themself against political attacks.

The second would be businesses would lose their ability to advocate for the things that make our communities better, levies for schools, bonding for jails, rural hospital bonds.

I-194, if it passes, eliminates that sort of voice throughout Montana on those issues that matter to Montanans every day.

- [Stan] Mangan's response?

- Well, first of all, it's not affecting their speech.

They can shout from the rooftops who they support or what issues they support or oppose or anything else.

They could put a sign in their window that says, "I support I-194" or "I oppose 194," as long as they're not paying for it.

Their speech isn't going anywhere.

What they won't be able to do is take out their checkbook and write a check to one of those PACs (laughs) to spend in politics, that's it.

- To untangle this argument, it helps to look at the text of I-194.

Specifically, it says artificial persons, once again, that's all businesses, nonprofits, unions, et cetera, will no longer have the power to spend money or expend quote, "anything of value" to support or oppose a candidate or issue on the ballot.

As far as federal law goes, anything of value has been interpreted broadly to mean things like staff time, mailing lists, office space, a business name or logo.

In state law, anything of value is, "goods normally paid for and not given away for free.

That definition is located in a different title of Montana law than the Montana plan would be, so it's unclear whether it applies, but if it does, this is how Mangan sees it playing out.

- What couldn't happen is, for example, if you go to a local restaurant and a local restaurant donates free coffee for the canvassing that's going to happen, that wouldn't be able to occur anymore, for example, because that would be something of value that you would normally pay for.

So those kinds of things would go away.

But this idea that they wouldn't be able to endorse or wouldn't be able to volunteer their time is just not true.

- Yeah, but you can understand how people could be confused about that.

- Oh, oh yeah.

Well, particularly when people say, "Well, I won't be able to do this."

But the simple answer is it's already current law and it's the way we've dealt with this for decades.

So don't have to reinvent every wheel.

- Knobel thinks it may be difficult for Montana business owners to figure out where the line is.

- The penalties under this thing are so severe that nobody's going to do that because the distinction there's not clear enough to make them comfortable taking the risk of what these penalties are on I-194.

- There's also another question about I-194, which is that even if it passes, holds up in court and works as intended, how much could it move the needle on campaign spending?

- What is not addressed is the millionaire and the billionaire class.

So wealthy individuals still remain unfettered in their ability to be able to engage in the political process in Montana.

- In 2024 federal races, more than a billion dollars was spent just by the top 10 individual donors alone, and that's all in traceable, reportable donations.

The Montana plan would not stop those because it's individual, not corporate spending.

- This is just the first step.

The Montana plan isn't the catchall for everything.

One of the things I told the chamber, "You want to stop that kind of independent spending?

Help me place the main proposal on the ballot next year.

If you don't want billionaire spending in elections, let's stop them."

- But all those questions will be moot if the Montana Plan's critics are right and it eventually gets struck down in court.

But some of the proponents, like former governor Mark Racicot, say it's still worth it for other reasons.

Even if this effort does get struck down by a court, do you still think it's worth it?

- Absolutely, I mean, you can't just sit back and curse the darkness.

You have to try and do something about it.

And this is a perfectly legitimate and reasonable way to deal in a reasonable fashion with eliminating some of the significant amount of the dark money that ends up just desecrating our political system.

- [Stan] And Van Kley says it's movements like these that sometimes can be a stepping stone towards change.

- At times, the US Supreme Court does at times overturn its precedent, and it will only do that if its precedent is challenged.

An example that folks are aware of is the US Supreme Court's decision in Dobbs in 2022.

Nearly 50 years after Roe v. Wade was decided, the US Supreme Court said, "We were wrong when we decided Roe v.

Wade."

That decision came about after decades of legislatures passing laws, testing the limits of Roe v. Wade, going to court and challenging and kind of chipping away at Roe v. Wade.

- But from Knobel's point of view, the precedent is worth protecting.

- In Citizens United, there was a 2008 documentary about Hillary Clinton and a corporation, Citizens United Inc.

That corporation, Citizens United, had created a documentary about Hillary Clinton for the 2008 presidential campaign, and the government banned it.

The government straight up banned it.

And you talk to people, you ask them, "Hey, do you think that if there was a documentary about a presidential candidate that the government should be able to ban it in the middle of a presidential campaign?"

Most people would be, "Of course not, that's crazy.

That's absurd.

Of course, that's free speech."

And so I think the real solution to this issue is an educated and informed electorate.

- [Stan] The hope of having a more engaged and informed electorate is something I heard echoed in at least one supporter of the Montana plan, but for Shannon Stober of the Bozeman area who came to hear about the Montana plan in Belgrade, the big money presents a chicken and egg problem.

- I think what I've observed over the past 15 years is the ways in which money and politics has completely created a decline in civic engagement and participation.

I think a lot of people who have just... A lot of people have just decided that their participation doesn't matter and they don't feel like there's a way out.

- With election day fast approaching, the fate of the Montana plan is now in the hands of Montana voters.

To read the full text of I-194, it's available in the Montana Voter Information Pamphlet.

This is an official product of the Montana Secretary of State's office and gets mailed out to all voters in the state.

Also in the voter information pamphlet is information on the two constitutional initiatives that are on the ballot, CI-132 and CI-133.

Let's start with CI-132.

Currently in Montana, state court judges are elected in nonpartisan races.

This means that the judges don't run in primaries for party nominations or have party labels attached to them on the ballot.

CI-132 aims to preserve this system by writing it into the state constitution, because right now the system is just a matter of statute, which means it can be changed through the normal legislative process.

Former district court judge Russell Fagg, who also happens to be a former Republican state lawmaker, supports the measure to keep the courts nonpartisan.

I asked him why.

- Politics is in the system, but let's try to keep it out to the best degree possible.

And one way to do that is select judges on a nonpartisan, and we've been doing that since the '30s, since the day of the Copper Kings when they made the change, because I understand back in the 10s, 20s, and 30s, the Copper Kings kind of controlled the judiciary.

Well, that's wrong.

That's not the way it should be.

We changed it in the 30s to a nonpartisan process, and I think it has generally worked pretty well.

And so why change something that's working?

- The Montana Republican Party has been one of the loudest voices against CI-132, and I asked GOP Vice Chairwoman Stacy Zinn why?

- We need to have judges on the bench that are going to rule by the law and the Constitution.

Unfortunately, we're seeing more and more biases come into play, and that's unfortunate because we've seen in the past where judges will act like they are more conservative instead of what they actually represent in order to get elected here in the state of Montana.

And then when they get on the bench, we start seeing their biases and their opinions are based more on left-leaning ideals.

So it's not fair to the voter.

The voters should know who they're actually voting for.

- This brings us to CI-133, a proposed amendment to the Constitution that aims to reform the initiative process itself.

Supporters of the proposal, a group called Montanans Decide, say the ability for Montanans to make or reject law by voting on it themselves outside of the legislative process is worth protecting.

- So under the slate of bills that are seeking to control the initiative process, what has happened is not only are signature gathering timelines exceptionally truncated, but also the ability to gather those signatures has become really, really difficult.

The legislature has continuously over the last two or three sessions kind of expanded the ability of state government officials to put their thumb on the scale for an initiative, either an opposition or support.

And so we kind of saw the writing on the wall and decided it was time to take it a step further and make sure that that process was explicitly protected in the Montana Constitution in a detailed way that restrained the government from interfering with it and held the government accountable.

- Todd O'Hair of the Montana Chamber of Commerce thinks voters should reject CI-133.

- The Montana Chamber, we've led an effort over the years to try to take away some of the frivolous sort of activity that happens with ballot initiatives.

It's an expensive process for the state of Montana.

It's laborious for government officials to go through these sort of things that aren't really legitimate sort of ballot initiatives.

Ultimately, at the end of the day, we're not big fans of ballot initiatives in general.

Largely, it's like you have a republic, right?

And that sort of process is that you elect officials to go to Helena, you elect officials to go to Washington DC, you elect officials to operate on your behalf at the city council and the local level, and you're entrusting them to make the decisions on your behalf, to study the issues, to get in, try to understand both sides of an issue and to make those decisions that you have employed them and you have encouraged them to engage in on your behalf.

- The full text of all these initiatives, along with arguments for and against them, can be found in the voter information pamphlet or on the Secretary of State's website at votemt.gov.

That's all we have for this episode of "Impact."

You can find all our previous episodes on our website or on the PBS app for your phone or smart TV.

I'm Stan Parker and from all of us here at Montana PBS, thank you for watching.

(calming music) (calming music continues) (calming music continues) Major funding for "Impact" comes from the Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans.

Funding also comes from viewers like you who are friends of Montana PBS.

Thank you.

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