When States Push Back — and the Courts Push Harder (UPDATED)
What Montana Tried to Do About Citizens United (and Why It Still Matters)
I first read about Montana’s challenge to Citizens United in Robert Reich’s Substack, which linked directly to Montana’s history and court cases. Like many readers, I wondered whether states could “bypass” Citizens United. Montana’s story turns out to be less about bypassing Citizens United — and more about testing where its limits might lie.
UPDATE Jan. 6, 2026 — The Montana Supreme Court halted a ballot initiative that would have banned corporations from election spending, on the grounds that it violated the state’s single-subject rule. The court’s decision was procedural, not a ruling on the substance. The sponsoring group said it would re-file.
Montana’s Long Memory of Corporate Capture
Montana’s resistance to unlimited corporate political spending didn’t come out of nowhere.
In the early 1900s, Montana was effectively controlled by copper barons who:
Bought legislators outright
Controlled newspapers
Used corporate wealth to dominate elections
The public response was decisive.
In 1912, Montana passed one of the strongest anti-corruption laws in the country, banning corporate spending in state elections.
For nearly a century, it worked.
Citizens United Changed the Rules — Everywhere
In 2010, the Supreme Court decided Citizens United v. Federal Election Commission, holding that:
Corporations have a First Amendment right to spend unlimited money on independent political advocacy
Governments — federal and state — may not ban or cap that spending
Political spending is treated as protected “speech,” regardless of scale
This ruling didn’t just affect federal elections.
It overrode state laws nationwide, including Montana’s century-old protections.
Montana Tries Anyway
Rather than quietly comply, Montana pushed back.
After Citizens United, Montana argued that:
Its unique history of corporate domination justified stronger safeguards
There was clear evidence that corporate money corrupts elections
States should be allowed to defend their own democratic processes
In 2011, the Montana Supreme Court agreed.
For a brief moment, it looked like states might carve out room to resist.
The Supreme Court’s Answer: No Exceptions
That moment didn’t last.
In 2012, the U.S. Supreme Court summarily reversed Montana in American Tradition Partnership v. Bullock.
No oral argument.
No full briefing.
Just a blunt message:
Citizens United applies everywhere.
History doesn’t matter.
States get no exceptions.
Montana lost.
After losing in court, Montana didn’t abandon the question — it changed it.
A State Tries a Different Way:
Montana’s Constitutional Challenge to Citizens United
While Citizens United is often treated as immovable federal law, Montana is testing a different idea — one rooted in state constitutional power rather than campaign-finance regulation.
In 2025, Montana voters may be asked to decide on a proposed constitutional amendment often called the Transparent Election Initiative. Instead of trying (and failing) to regulate corporate political spending under federal free-speech doctrine, the initiative asks a more basic question:
What powers does a corporation actually have — and who grants them?
The Core Idea
Corporations are not natural beings. They exist because states create them. States decide:
what powers corporations receive,
what privileges they enjoy (like limited liability),
and what they are not allowed to do.
Montana’s proposal takes that idea seriously.
Rather than saying “corporations may speak, but only this much,” the amendment says something more fundamental:
Political spending is not a power the state grants to corporations at all.
What the Amendment Would Do
If adopted, the amendment would:
Clarify that corporations, LLCs, nonprofits, and other artificial entities only have powers expressly granted by the state constitution.
Explicitly withhold any power to spend money or anything of value to influence elections or ballot initiatives.
Allow Montana to re-grant normal business powers — except election activity.
Preserve political speech for human beings, while preventing corporate structures from acting as political speakers.
Permit political committees created solely for election purposes — but without the broader privileges of corporations.
In plain terms:
Business entities could do business — but not politics.
Why This Is Different
Most campaign-finance laws fail because courts treat corporate political spending as a form of protected speech.
Montana’s approach sidesteps that trap by reframing the issue:
This is not about regulating speech.
It’s about defining corporate power.
If corporations are creatures of the state, the argument goes, the state can decide that election spending is not part of the deal.
Whether courts will accept this argument remains an open question.
Why This Matters Beyond Montana
If this approach survives legal challenge, it could offer a roadmap for other states — not to “overturn” Citizens United directly, but to work around it by reclaiming state authority over corporate charters.
That’s why this proposal has drawn national attention — and why it is almost certain to be challenged in court if voters approve it.
The Bigger Question
This initiative highlights something we don’t talk about enough:
Corporate political power didn’t appear naturally.
It was constructed — legally, deliberately, and over time.
Montana is asking whether that construction can be revised.
Whether or not this effort ultimately succeeds, it exposes a crack in what many assume is an unchangeable system — and reminds us that democracy is shaped not just by elections, but by the legal definitions we accept without question.
This isn’t just a Montana story. It’s a test case for whether states can reclaim authority they quietly gave away — and whether we’re willing to rethink the legal scaffolding that now dominates our politics.
So What Can States Still Do?
This is where many articles blur the line — and where clarity matters.
❌ What States Cannot Do
Ban corporate political spending
Cap independent expenditures
Treat corporate money as corruption by definition
Create state-specific exceptions to Citizens United
✔️ What States Can Still Do
Regulate corporate charters and governance
Require disclosure tied to doing business in the state
Require shareholder approval for political spending
Set ethics and disclosure rules for state elections
Condition eligibility for state contracts
Create public financing systems
Enforce anti-coordination and transparency rules (within court limits)
Key takeaway:
States can regulate corporations — but not their political spending itself.
Why Montana Still Matters
Montana’s story tells us something essential:
Democracy keeps trying to protect itself.
The courts keep narrowing the tools available.
This isn’t about voter apathy.
It’s about judicial decisions that elevate capital over collective self-government.
States still matter — but only inside lanes the Supreme Court permits.
Those lanes are narrow. And they’re getting narrower.
The Larger Pattern
Montana isn’t an exception. It’s a preview of how democracy now operates.
Regardless of whether Montana’s constitutional approach succeeds, states still retain important — though limited — tools.
States attempt reform
Corporations challenge it
Federal courts decide whether democracy is “allowed” to regulate money
This is how privatization advances — not through a dramatic takeover, but through court rulings that quietly disable democratic guardrails.
🔎 Update: Ballot Language and Process (December 2025)
Since this post was published, the Montana Supreme Court ruled that the state attorney general improperly rewrote ballot language for a proposed constitutional initiative — reinforcing how contested the initiative process itself has become.
The ruling wasn’t about the substance of the proposal. It was about who gets to shape the language voters see, and under what authority. Even when courts block executive overreach, the decision underscores how narrow and procedural the remaining democratic lanes have become.
This case is a reminder that in today’s system, democracy is often constrained less by voter apathy than by control over process.
What You Can Do
Watch — and learn from — state constitutional efforts. Montana voters may soon decide whether corporations should have any state-granted power to spend money in elections. This approach doesn’t regulate speech — it redefines corporate power. Even if you don’t live in Montana, this is a model worth watching.
Support transparency and state constitutional literacy.
Corporate power grows in the dark — and thrives when people don’t realize states still control corporate charters.
Ask candidates how they would address Citizens United — not just whether they oppose it.
Support public financing of elections where available.
Remember: a vote for president is a vote for federal judges.
Closing
Montana didn’t defeat Citizens United. But it clarified the real problem:
The issue isn’t whether states want to protect democracy.
It’s whether the courts will let them.
Excellent! ……….This is definitely something to ‘watch’ and keep our fingers crossed that it passes so other states can follow and get Corporate money out of our political system!!! Thank you for clarifying!