Attorney general rules ‘anti-dark money’ ballot initiative has too many parts

Attorney General Austin Knudsen rejected a proposed ballot initiative aimed at ending corporate money in Montana political campaigns on Friday, deeming it legally insufficient. The initiative’s primary advocate, former State Commissioner of Political Practices Jeff Mangan, said in a Monday interview that he plans to challenge the decision in court. 

The proposed constitutional initiative would alter the law that applies to businesses, nonprofits and other incorporated entities that operate in Montana, barring them from contributing to campaigns and political committees that work to influence election outcomes.

That ban would also prevent a two-step workaround that allows individuals to make anonymous political donations by giving to corporations that, in turn, donate to political committees that are technically required to disclose their donors. 

Knudsen, a Republican whose job duties include evaluating proposed initiatives for “legal sufficiency,” struck down the initiative on the grounds that it affects more than one area of the Montana Constitution. He also wrote that it could cost the state up to $500,000 if it were challenged as incompatible with the United States Constitution and that it would bar businesses, nonprofits, trade associations and labor unions from lobbying.

Mangan said attorneys with his group, the Transparent Election Initiative, would officially dispute the attorney general’s conclusion within the legally required 10-day window.

In the memorandum denying the proposed amendment, Knudsen said the initiative violated the “separate-vote” requirement, a principle that bars unrelated amendments from being logrolled into a single ballot item. Mangan acknowledged the 1,000-word amendment is made up of many components, but argues the language should be permitted because those parts substantively address a single issue.

Knudsen also noted the amendment could violate federal legal precedent that provides corporations with First Amendment protections, including the right to free speech through political donations. His memorandum rejecting the proposed measure concluded “a colorable case against the ballot measure exists.”

Mangan thought that analysis exceeded the agency’s authority. 

“A legal-sufficiency review is a technical gatekeeping function,” Mangan wrote in a Monday email to MTFP. “The memo strays into policy and predictive litigation arguments that go beyond that role.”

Mangan also disputed Knudsen’s assertion that the measure would restrict business lobbying.When the proposed initiative was announced in mid-July, it was endorsed by former Montana governors Republican Mark Racicot and Democrat Steve Bullock. The proposal also received endorsements from two recently defeated Democrats: former U.S. Sen. Jon Tester and state legislative candidate Rina Fontana-Moore, who also served 16 years as Cascade County’s clerk and recorder.