HELENA, Mont. (Legal Newsline) - The majority of Montana voters may have supported it, but a ballot initiative aimed at overturning Citizens United v. FEC remains up in the air when it comes to constitutionality.
Nearly 75 percent of Montana voters approved the initiative, which basically establishes that they disagree with the U.S. Supreme Court's campaign finance ruling and believe corporations are not human beings with constitutional rights and that money is property, not speech.
Known as I-166, the Prohibition on Corporate Contributions and Expenditures in Montana Elections Act also directs the state's congressional delegation to support a constitutional amendment that would overturn Citizens United.
In its 2010 ruling, the nation's high court held that corporations and unions have the same First Amendment rights that individuals do and as such, can spend unlimited amounts of money in federal elections.
Supporters of the initiative -- Stand With Montanans, Common Cause, Free Speech for People and Gov. Brian Schweitzer - said in a statement that voters on Tuesday sent a clear message about their desire to "clean up our elections, end the big money scandal, and address the problem of secret money."
But Jim Brown, a Helena attorney who represents two voters who oppose the initiative, said I-166 is largely symbolic at this point and would be very difficult to implement, if it even gets that far.
Brown said a Montana district judge last month refused to rule on his clients' motion for summary judgment before the Nov. 6 election. Now that the election is over, Brown said, he expects the matter will move forward.
His clients, Montana voters Jeannie Marie Rickert and Geoffrey Goble, filed a complaint in August that asserts the initiative is unconstitutional. Brown represents the pair, along with fellow Helena attorney Chris Gallus.
The Montana Supreme Court in June rejected a challenge seeking to remove the initiative from the ballot.
In a memo supporting their motion, Brown's clients claim that I-166 is either a "non-binding policy" that does not propose law as required for ballot initiatives or is in fact, a law that violates the state and federal Constitutions by directing lawmakers to support and take certain actions.
Pointing to the Utah Supreme Court's decision in Proulx v. Salt Lake City Recorder, Brown said the court there determined that a measure similar to I-166 was unconstitutional because it didn't create legislation or law.
Brown said he expects the state of Montana will soon have to respond to his clients' motion for summary judgment, which was put on hold until after the election. Once the state's briefing is in, Brown said he anticipates the judge will hand down a ruling.
"I would be very surprised" if I-166 is found to be constitutional, Brown said. "But, you just never know."
If the initiative is deemed constitutional, supporters would then need to overcome the hurdle of passing a Constitutional amendment, a task that requires Congress to approve it with a two-third majority vote and three-fourths of the states to ratify it.
Tuesday's approval of the initiative made Montana one of the two first states "where votes have gone on record calling for a constitutional amendment to overturn the Citizen United decision," according to a release from Stand With Montanans.
Colorado voters on Tuesday also supported a Citizens United-focused initiative.
In the same release, Derek Cressman of Common Cause, said that he and other supporters believe I-166 will have a "ripple effect" throughout the nation and eventually result in Citizens United getting overturned.
"Montana's rebellion against corporate money in politics has sparked a fire that has already spread to many states and will soon be spreading to many more," Cressman said. "We are already getting inquiries from leaders in other states who want to launch similar initiatives in 2014 to keep pushing back against the court's big mistake in Citizens United."
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