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In 2012 Montanans voted overwhelmingly (75 percent for 25 percent against) for Initiative 166. That initiative read as follows:

"Ballot initiative I-166 establishes a state policy that corporations are not entitled to constitutional rights because they are not human beings, and charges Montana elected and appointed officials, state and federal, to implement that policy. With this policy, the people of Montana establish that there should be a level playing field in campaign spending, in part by prohibiting corporate campaign contributions and expenditures and by limiting political spending in elections. Further, Montana’s congressional delegation is charged with proposing a joint resolution offering an amendment to the United States Constitution establishing that corporations are not human beings entitled to constitutional rights."

While the measure was struck down, the point was to express our state's opposition to the Citizens United decision, penned by retiring Justice Anthony Kennedy, that minimized the political rights of individual Montanans in favor of unlimited giving by out-of-state special interests.

Unfortunately, it appears Judge Brett Kavanaugh has a poor record when it comes to money in politics. In fact, in Emily’s List v. Federal Election Commission, Kavanaugh's decision stated that nonprofits have the right to spend unlimited amounts of money to support their chosen candidates. This decision would foreshadow and set some amount of precedent for the later Citizen's United decision in 2010.

Also notable is Kavanaugh's opinion in Bluman vs FCC, a case involving foreign contributions to elections. While Kavanaugh's decision in this case upheld a ban on foreign money in elections, he also signaled a wish to narrow that ban in a way that would allow foreign spending on our election so long as they don't explicitly call for a vote one way or the other. Kavanaugh's narrowing of the ban would allow foreign interests unlimited spending on "issues ads" designed to sway our election without explicitly saying so. This would basically allow foreign governments and nationals to function in a similar manner to out of state special interest groups and PACs. The Bluman decision should be subject to especially strict scrutiny during the upcoming confirmation hearings; especially considering the Russian effort in 2016 to interfere with our elections.

Interestingly, Judge Merrick Garland, who was denied the opportunity for a confirmation hearing, holds a position and record far more in line with the values expressed in I-166. I would hope U.S. Sens. Jon Tester and Steve Daines will keep I-166 and the overwhelming support it received in mind during Judge Kavanaugh's hearings.

Joseph Taylor,


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