A Montana ballot measure to ban dark money in state politics is being backed by politicians from opposite sides of the political divide, setting up a potential legal challenge to the US Supreme Court’s landmark Citizens United ruling.
The proposal, which will go before voters in November, would prevent businesses, trade unions and non-profit organisations from donating to candidates and political parties or taking sides in public referendums. It would require a simple majority to pass.
Supporters say the measure is a response to public frustration over the scale of political spending by corporations, unions and other special-interest groups. Jeff Mangan, founder and president of the Transparent Election Initiative, which is behind the proposal, said: “I haven’t talked to a person yet that doesn’t think that there’s too much money in politics.”
The initiative faces opposition from Montana’s Republican Party, the Montana Chamber of Commerce and Republican governor Greg Gianforte. They argue that it would infringe free speech and is likely to be unconstitutional.
Todd O’Hair, president and chief executive of the chamber, which has about 2,000 members, said the restrictions would concentrate political influence in the hands of wealthy individuals.
“We think it’s a clear violation of free speech,” he said.
In a statement on Wednesday, Mr Gianforte’s spokesman Sean Southard described the proposal as “a likely unconstitutional gag order on Montana small businesses, ranches and family farms”.
The legal challenge over Citizens United
The central issue is how the proposed ban would interact with Citizens United, the 2010 Supreme Court decision in which a 5-4 majority ruled that independent political spending by corporations and labour unions was protected by the US Constitution’s free speech provisions.
Supporters believe they have a legal argument based on corporate regulation. Businesses, unions and non-profit organisations are registered to operate within individual states, which can impose restrictions on those entities as a condition of doing business.
Under the Montana proposal, an organisation violating the ban could lose its corporate registration. Backers argue that this would make the measure an exercise of state sovereignty and allow Montana to treat corporations as “artificial persons” without free speech rights.
Justin Levitt, a law professor at Loyola Marymount University in Los Angeles who served in the Biden administration, described the approach as “creative lawyering”. He said the measure would almost certainly be challenged if approved, with the Supreme Court likely to have the final say.
If passed, the law would take effect on 1 January 2027, making Montana the first state with such a prohibition on its books. Hawaii lawmakers approved a similar measure in May, but it is not due to take effect until July and is already being challenged in court.
During the 2024 federal election cycle, nearly two billion dollars in dark money was spent across the United States, according to the Brennan Center for Justice. Such donations are largely exempt from individual spending limits and disclosure requirements under Citizens United.
Montana is dominated by Republicans and Donald Trump won the state by nearly 20 percentage points in 2024. But the state also has a populist tradition and a historic distrust of large institutions.
Among the initiative’s most prominent supporters is Marc Racicot, a former Republican governor who served from 1993 to 2001 and later chaired the Republican National Committee. He appeared at a town hall in Billings on Wednesday alongside Jon Tester, Montana’s former Democratic senator, to promote the measure.
Mr Racicot, who considers himself an independent, said the political system had become “rancid” since Citizens United, with billions of dollars funding attack adverts without revealing their source.
“The money moves around through these serpentine collections of entities and groups, then it becomes unidentifiable,” he said.
Tom Moore, a senior fellow for democracy and government at the liberal Center for American Progress, said restrictions on political spending enjoyed broad public support. “Everybody hates dark money,” he said.
But Mr Levitt said wealthy individuals would still be able to exercise significant political influence even if the measure became law. “This wouldn’t change a thing about Elon Musk’s political spending,” he said.
