For the Montanans debating Initiative 166, the measure calling for a constitutional amendment proclaiming “corporations are not people,” the fight is a battle over the future of democracy and free speech in America.
“Elections are bought and sold and people don’t feel empowered to participate in their democracy,” said Missoula City Councilwoman Cynthia Wolken, an I-166 supporter.
But opponents dismiss that as posturing.
“It’s a political measure, rather than a specifically practical measure,” said state Sen. Dave Lewis, R-Helena. He called the measure “a very smart political move that will activate the base of the Democratic Party, because they’re likely to vote against corporations.”
A national campaign
I-166 is part of a national movement backed by President Obama to amend the U.S. Constitution. It aims to reverse the Supreme Court’s Citizens United decision, which held that corporations and unions possess free speech rights, just as individuals do.
Although they may not directly contribute to campaigns, corporations and unions can spend unlimited amounts of money to influence elections through what are called political action committees, the court ruled.
The debate over I-166 only intensified this summer after the U.S. Supreme Court overturned Montana’s 100-year-old ban on corporate spending in state elections. And just this month, U.S. District Judge Charles Lovell struck down Montana’s campaign contribution limits entirely.
Although the issue is largely seen through the campaign finance lens, the high court has maintained since 1819 that corporations, like individuals, can sue and be sued. It has also ruled that corporations have certain rights under the U.S. Constitution.
I-166 urges Montana legislators to try to change that.
But University of Montana political science professor James Lopach said the measure’s backers face “a very difficult proposition.” He added that only four amendments have overturned Supreme Court decisions and that in the Constitution’s entire history it was amended just 27 times.
There are two ways to pass a Constitutional Amendment: The measure must either pass both houses of Congress with a two-thirds majority, or two-thirds of state legislatures must call a national Constitutional Convention. The second method has never been used. In both scenarios, three-fourths of the states must ratify the amendment.
Given such long odds, Lopach described I-166 as “primarily symbolic.”
Opponents say that makes the ballot measure misleading for many potential voters. “I think that the average voter doesn’t know that what they say is not going to be implemented,” said James Brown, legal counsel for Montanans Opposed to I-166.
Wolken, who got the Missoula City Council to endorse the measure’s essence last fall, acknowledged that the initiative doesn’t exactly do anything. “But it lets us have the conversation,” she said.
A battle from the outside
Both sides accuse outside groups of playing too much of a role in the debate over I-166.
Brown maintains the group Common Cause is “funding this entire effort.” “What interest is served by prohibiting people who associate together from speaking on public policy issues?” he asked. “There is a big difference between speaking and voting.”
But the measure’s supporters said an outside group, the American Tradition Partnership, helped bring a lawsuit to Montana courts seeking to remove I-166 from November’s ballot.
In June, the Montana Supreme Court held in a 6-1 decision that I-166 was “legally sufficient” to remain on the ballot.
The debate has simmered ever since. State Sen. Cliff Larson, D-Missoula, accused ATP, a Washington, D.C.-based organization, of wanting a campaign funding system based on secrecy. “They want backroom decision-making,” he said.
Brown countered that supporters of I-166 are focusing on the wrong thing, saying they should be working instead to strengthen “Montana disclosure laws, not cut off speech.”
He added that while Citizens United protected the right of corporations and unions to engage in independent expenditures, I-166 only targets corporations, not unions.
Despite Brown’s concerns, a September poll by Lee newspapers found that 53 percent of those surveyed favored I-166, with 24 percent opposed to it. The rest remain undecided.