'How Do You Get Money Out of Politics Without Overturning Citizens United?' Montana Could Have the Answer

Montanans are voting Tuesday on a potentially groundbreaking ballot initiative that could become a model for how to overturn Citizens United v. Federal Election Commission—the 2010 US Supreme Court decision that ushered in the era of unlimited money in politics—without the near-impossible necessity of a constitutional amendment.

Citizens United established that the government cannot restrict independent political expenditures by corporations, labor unions, and other outside groups on the basis of their corporate or union identity. Simply put, the decision affirmed corporate personhood and, essentially, that money is speech that cannot be restricted.

Since then, super political action committees have proliferated, and corporate spending has exploded from just $12.8 million during the 2010 election cycle to $737 million during the current one.

Initiative 194, also known as the Montana Plan, would prohibit corporations, nonprofits, trade associations, and other artificial entities from spending money to influence elections and ballot measures in the state. Rather than attempting to restrict corporations' constitutional rights as affirmed by Citizens United, states could simply not give corporations the legal power to spend on politics.

"A yes vote on I-194 means that only real people—not corporations, unions, trade associations, nonprofits, or groups with anonymous donors—are allowed to spend money in Montana elections," the Yes on Initiative 194 campaign said on its website.

"It's time to kick the oligarchs out of Big Sky country," the campaign added.

The proposal's backers argue that legal entities should not have the same rights as natural persons.

"Each state creates and defines its corporations. It need not permit its creations to consume it," Tom Moore, a senior fellow at the Center for American Progress (CAP), explained in September, arguing that corporations are legal creations, not natural persons, and that states retain broad authority to determine what powers they exercise.

"When the state creates a corporation, it is starting from nothing and deciding what to give the corporation, and no case has ever held that they have to give local spending power to a corporation," Moore told Fortune on Tuesday. "It's not regulation; it's redefinition."

Moore stressed that Initiative 194 "is not going to stop Elon Musk from writing a big fat check to some election in Montana."

"What it will stop them from doing is laundering the money through a dark money group," he added.

Montana's former commissioner of Political Practices, Jeff Mangan—who spearheaded Initiative 194—was equally blunt.

"The Montana Plan simply removes the ability for corporations to spend in our politics," he told Montana PBS. "By removing the corporation's ability to spend in our politics, we end dark money. Simple as that."

Initiative 194 has attracted support from Montanans concerned about the growing influence of wealthy donors and anonymous political spending.

"Most people I talk to when they hear about the prospect of getting dark money out of elections are in favor of it," state resident Nathan Kommers told Montana PBS. "I think that it makes sense to almost everybody."

Shannon Stober, who lives in the Bozeman area, said: "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. A lot of people have just decided that their participation doesn't matter and they don't feel like there's a way out."

Opponents, including the Montana Chamber of Commerce, argue that Initiative 194 violates the First Amendment by restricting organizations' political speech. If passed, the measure will surely face legal challenges.

However, former Republican Montana Gov. Marc Racicot, who supports Initiative 194, said the effort is worthwhile regardless of the ultimate outcome.

"You can't just sit back and curse the darkness," he told Montana PBS. "You have to try and do something about it."