“I-194 reaches far beyond election spending. It threatens ordinary, unpaid speech about a local property tax levy or ballot measure and asserts a dangerous claim that the government may condition existence under the law on silence about elections.”
I-194, the ballot proposal known as the “Montana Plan”, aims to address a real problem: the massive amount of money influencing politics. But it’s written so broadly that Montana businesses and nonprofits could lose their legal status for simply posting a normal opinion about a local property tax levy vote or ballot measure on Facebook. That’s wrong, and dangerously overbroad. And I believe as a matter of principle that the government should not condition the right to exist as a company or a nonprofit on silence about elections.
I-194 works by stripping Montana corporations, nonprofits, LLCs, unions, trade associations, and other “artificial persons” of “political spending power” – defined in the proposal as the legal power to spend “money or anything of value” to support or oppose candidates, parties, or any state or local ballot issues, including local property tax levy votes. A violation would forfeit the entity’s legal charter privileges, including limited liability, perpetual existence, and the right to do business in the state.
This extremely broad definition of “political spending power” threatens severe penalties for normal, organic speech. A social media post or a blog is “anything of value.” A local hardware store simply posting on its Facebook page “vote no on the city tax levy” could, based on the plain language of I-194, become a trigger for losing legal status.
I-194 attempts to carve out “bona fide news, commentary, or editorial content” but fails to define these terms. This means the government will have very broad discretion to decide whether the hardware store’s tax levy Facebook post was safe “bona fide” commentary or illegal political spending.
This is far broader than Montana’s existing campaign finance laws, which have provided relatively safe harbor for unpaid, organic communications about elections. The COPP has repeatedly ruled that current law does not treat unpaid social-media posts as election communications and does not force reporting of de minimis activity. I-194 lacks the speech protections of a paid-versus-organic test and a $250 de minimis threshold, and does not adopt the existing definitions in Title 13.
In practice, it will be Montana-based businesses and nonprofits that will face the most severe penalties from I-194’s overly broad rules. Montana simply cannot cancel a Delaware charter for an out-of-state group that never registered in MT, owns no land, and only buys election ads. If the group has a Montana certificate of authority, the SOS can try to revoke it. If not, the state’s remaining tool to enforce I-194 would be a lawsuit asking to stop further spending, a case that can run for years after the election has already passed. A Helena nonprofit, a Kalispell LLC, or the local hardware store would face an existential dissolution-level risk for ordinary speech about a local property tax levy under I-194, while the out-of-state election spenders can restructure and keep spending.
I-194 also violates the core American idea that people have a natural right to associate: to join together in a business, a church, or a nonprofit and to speak as a group. Because state government issues the paperwork that legally recognizes an association, I-194 says the state has the power to silence their speech. That’s a very dangerous expansion of government power. If I-194’s logic stands, there is no reason it stops at restricting “artificial persons” from doing anything else: operating a gun range, a church, a bookstore, or engaging in any other activity disfavored by the state.
I-194 reaches far beyond election spending. It threatens ordinary, unpaid speech about a local property tax levy or ballot measure and asserts a dangerous claim that the government may condition existence under the law on silence about elections.
This column originally appeared in Lee Newspapers.
