According to Truthout, Montana is about to become the first state to oppose the 2010 Citizens United decision by the Supreme Court by using a 2026 ballot initiative — an innovative legal maneuver that could be adopted by other states. The idea is wildly popular. A poll conducted last month by a pro-democracy group known at Issue One found that 74 percent of voters in Montana, including majorities of Republicans and Independents, support the ballot initiative.
Oh my! Montana plebes are rebelling.
And it could spread to other states.
Ending corporate free speech could affect elections which in turn could the US economy.
Yep.
The argument to be used: But wait. Isn’t federal law supreme and doesn’t that mean what the US Supreme Court says is the law of the land? Apparently not, according to Moore. He argues that the amendment wouldn’t overturn the Citizens United ruling, it would merely render the ruling ineffective within Montana because businesses operating in the state would have to abide by its definition of corporate powers.
“It’s a red state, which is useful, I think,” said Moore. The popularity of the idea in what many would consider a bastion of conservative politics makes it possible for “the country to see that it’s not just lefty liberals who don’t like dark and corporate money in their politics.”
Montana has a history of fighting corporate spending and is a fitting state to spearhead the beginning of the end of Citizens United. Since 1912, corporations were banned from spending money to influence elections under the state’s Corrupt Practices Act. A hundred years later, the US Supreme Court overturned that act to ensure compliance with Citizens United. “The people of Montana have not forgotten that,” said Moore. “They are fiercely independent. They don’t like other people coming in and telling them what to think.”
Here’s the crux of Moore’s argument. In order for the Supreme Court to override the desires of Montana voters, it would have to rule that states do not have the right to define corporations. “This is foundational corporation law. If you start pulling the foundation blocks out from the building, it could really destabilize American business. I don’t think they want to do that,” he said.
Who cares what Montana does, right? Actually, if even one state passes a ballot initiative like this, it could embolden voters in other states to do so as well. Moore explained that in almost every state, “no out-of-state corporation can exercise any power in the state that a domestic corporation can’t exercise. What that means is, if you’re in Montana and you pass this, your corporations are out [of political spending] everywhere. But it also means that 49 states worth of out-of-state corporations also can’t spend in your politics. Because if you no longer give the power to your domestic guys, then out-of-state corporations don’t have that power either.”
I wonder if Montana will start flying the “Don’t Tread on Me” flag?
If that is what the “plants” (and I mean that literally & figuratively) on the Supreme Court have to rule then that is what they will rule. Then an edict will ensue (not national legislation, an edict) saying just what a corporation is and what it can do.
Oliver Wendell Holmes said “The law is what we (the Supreme Court) say it is.”
Now, even though that sounds high handed, if you read the context, he actually meant it in a cautious sense respectful of the law and the power of courts.
In this case it will be intended to create a “Brave New World.”
If I were attacking Moore’s argument, I would rely mostly on the concept of unconstitutional conditions. In a nutshell, this is a doctrine that a state cannot restrict someone’s constitutional rights indirectly by making them a condition of something the state has the ability to control, when that state couldn’t do it directly.
For example: it would be illegal for a state to impose a condition that says that in order to get a driver’s license, you have to agree never to publicly say anything in support of gay marriage. States absolutely have the right to regulate who can and cannot drive - but they can’t link it to foregoing constitutional rights. There are exceptions and limitations and caveats, but that’s the general rule.
So Montana can’t do this to their domestic corporations. They’re allowed to create all sorts of conditions and limitations and whatnot as part of their corporate law, but they can’t say that corporations are going to be deprived of the right to engage in constitutionally protected speech.
Let’s extend that. Montana doesn’t just strip their domestic corporations of the power to engage in political speech. They also strip their domestic corporations of the power to engage in speech that the Montana legislature doesn’t like substantively. For example, speech that "portrays gay relationships in a positive light.” Right? Because it doesn’t matter that that’s a unconstitutional prohibition on free speech - they’re just limiting the powers that their domestic corporations have, right? So now they’ve effectively censored every television network (all television networks and broadcasters are corporations) from airing television shows like Will and Grace or Glee in Montana? And that’s legal, under this theory?
You’ve triggered a memory from something I read 7 years ago.
I believe it was true then and true now. The two greatest visions of a future dystopia were George Orwell’s “1984” and Aldous Huxley’s “Brave New World.” The debate, between those who watched our descent towards corporate totalitarianism, was who was right. Would we be, as Orwell wrote, dominated by a repressive surveillance and security state that used crude and violent forms of control? Or would we be, as Huxley envisioned, entranced by entertainment and spectacle, captivated by technology and seduced by profligate consumption to embrace our own oppression? It turns out Orwell and Huxley were both right. Huxley saw the first stage of our enslavement. Orwell saw the second
