Who do you think should win the free-speech lottery?

There is a fair amount of conjecture surrounding one of the bills I am sponsoring in the 63rd legislative session, Senate Bill 320. The bill is controversial and unconstitutional, and that is exactly why I brought it forward, because I felt it is a discussion we needed to have. Please take a few minutes with me and allow me to explain. 

The bill was drafted in response the I-166 ballot initiative last election cycle that passed and charged Montana’s appointed and elected officials, state and federal, to do two things. 

First, it directed Montana’s officials to implement a policy that corporations are not human beings with constitutional rights.

Second, it charged Montana’s congressional delegation with proposing a joint resolution to offer an amendment to the U.S. Constitution establishing that corporations are not human beings entitled to constitutional rights.

I-166’s stated goal was to establish a fair playing field during election cycles based upon the premise that corporations are not people and should not be allowed to participate as people do. 

The U.S. Supreme Court decision that I-166 was designed to overturn (Citizens United) concluded that that the First Amendment purposefully keeps the government from interfering in the “marketplace of ideas” and “rationing” speech, and it is not up to the legislatures or the courts to create a sense of fairness by restricting speech.

I-166, however, directed us to do just that by prohibiting corporations from “electioneering communications” and “independent expenditures.” The initiative did not specify what corporations should be allowed to participate in electioneering communications or independent expenditures; it simply said that corporations are not allowed the constitutional rights of free speech in our elections.  

My bill simply clarifies that to be fair we need to limit the speech for all corporations, for profit and not-for-profit alike.  

To establish a truly fair playing field, a corporation is a corporation, for profit or not-for-profit, and to be fair they are either all allowed to participate as is currently, or they are all prohibited as I-166 directed. It doesn’t matter if they are multibillion-dollar enterprises or the more common small business such as a ranching family that incorporated to protect their home and land from liability. It also includes unions and media corporations.

Incorporation of large or small enterprises happens for different reasons. Family farms, main- street businesses, home-based businesses, churches, hospitals, unions, newspapers, community-based care-giving entities and others are all corporations made up of individuals. One of the biggest reasons for incorporating is to protect the individuals from the 90 million lawsuits filed in the U.S. every year. That’s a lawsuit being filed every three seconds in this country. It’s safe to say that there is good reason for people to protect their assets while participating in our system of free-market capitalism or social giving. 

Justice Kennedy’s opinion for the majority in the Citizen’s United decision noted that because the First Amendment (and the Supreme Court) does not distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs.

The majority argued that to grant First Amendment protections to media corporations but not others presented a host of problems, and so all corporations should be equally protected from expenditure restrictions.

Further, the majority argued that the First Amendment protects associations of individuals in addition to individual speakers, and that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. 

Corporations, for profit and not-for-profit, are associations of individuals, and should therefore have speech rights under the First Amendment. 

The problem surrounding what I-166 charged us with implementing is the same issue that the Citizen’s United decision hinged upon. How does one choose which corporations should be allowed free speech and which ones should not? Does the free press guaranteed in the First Amendment of our Constitution exempt the press? I would say yes, absolutely. Does this mean that the others could be prohibited? Perhaps with an amendment to our U.S. Constitution, but short of that outcome the First Amendment will not allow it as determined by our Supreme Court.   

I brought this bill to have a conversation about what determined the Citizen United ruling and why I-166 should not have been allowed on the ballot last November. If the initiative was charging us solely with urging our congressional delegation to push for an amendment to the Constitution, I would not have introduced my bill. The fact that we were charged to do something that is in direct conflict with how the First Amendment has been interpreted by our highest court is worthy of discussion, and is why SB320 is alive.  

The fact that this unfortunate, unconstitutional directive was constructed because Montana’s Supreme Court decided to abrogate its responsibility and not rule on the constitutionality of I-166 is a conversation worth having. Seventy-five percent of those voting last election cycle directed us to do something unconstitutional because Montana’s high court ruled I-166 had been qualified correctly by petition of registered voters. 

SB320, as I initially introduced it for discussion, included all corporations, including media corporations. The bill prohibited them from electioneering communications and independent expenditures. Editorials or commentary supporting or endorsing issues or candidates in newsprint owned by a corporation is an exercise of free speech. A corporation is an entity that does not have the constitutional rights of free speech according to I-166, and if we are to establish a fair playing field it must apply to all corporations, not just some corporations.

On the Senate floor while making this case, I offered an amendment to remove media corporations from the prohibition of free speech, and it passed. So, the bill as amended now says that not all corporations are created equal. We picked a winner in the lottery of free speech.

Is the bill still unconstitutional? Yes, and it is now arguably unfairly unconstitutional, if there is such a thing. Many are arguing that SB320 is a waste of our Legislature’s time and that we should not be considering unconstitutional legislation. I wholeheartedly agree, but this is what happens when unconstitutional initiatives are allowed on the ballot and are passed overwhelmingly by our citizenry. 

Those on the Montana Supreme Court who thought I-166 was unconstitutional were in the minority but clearly articulated their dismay and disgust with the majority’s allowance of I-166 to appear on the ballot last fall. Their opinions underscore the need for the discussion I have started with SB320.  

Here’s a taste of the Montana Supreme Court justices’ perspective: “the I-166 exercise simply does into the wind what most Montana children learn to avoid early in life … shooting popcorn at a brick wall will accomplish nothing, even if it makes one feel good … (and) placing a facially defective measure on the ballot does nothing to protect voters’ rights and instead creates a sham out of the voting process by conveying the false appearance that a vote on the measure counts for something, when in fact the measure is invalid regardless of how the electors vote.”

In short, having the discussion of who should be a winner in free speech and who should be a loser – as well as who gets to pick those winners and losers – is a valuable exercise if we are to maintain that freedom. Often, matters found in ballot initiatives are more complicated than a seemingly simple up or down vote, which is why we have a system of checks and balances in governance. Frankly, the system should have prevented the unconstitutional initiative from being on the ballot. But it did not.  

Now we are charged with implementing what voters said they thought they wanted when they voted to disallow corporations’ free speech. The initiative said “corporations,” and that should mean all corporations - minus the media, of course. We’ve already picked one winner. The bill has been sent to the House, and we can discuss other winners of free speech over the next couple months.  

It is sad that we need bills like SB320, but bad laws are often corrected only when those bad laws are required to be followed by everyone. Imagine if the cities needed to follow the Endangered Species Act like those of us in Lincoln County. At the very least, we are having the discussion I had hoped for when I introduced this unconstitutional response to an unconstitutional initiative.   

PS – If you have an idea of who you would like to win in the free-speech lottery, now is the time to yell – it worked for the media.

(State Sen. Chas Vincent represents District 1, which includes Lincoln County, at the Montana Legislature.)