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Mr. Koopman and Mr. McGillvray have submitted their views in opposition to I-194. TMP was asked to respond. Respectfully, two of the three objections rest on a misreading of the measure. The third is a constitutional claim, and it runs the wrong way.
The out-of-state claim is wrong on the text. McGillvray and Koopman both say I-194 reaches only Montana entities and leaves outsiders free to spend. The subject line quoted in the analysis says the opposite in its own words: artificial persons "includes all such entities doing business in Montana." A Delaware corporation buying ads in a Montana race is covered exactly as a Billings LLC is. There is no in-state/out-of-state line anywhere in the measure. "Open season on Montanans only" describes something nobody drafted.
What the objection may be reaching for is that an out-of-state individual can still write a check. True — and equally true of a Montana individual. I-194 does not touch natural persons, left or right, in state or out. What it removes is the entity in between. A man who wants to spend seven figures in a Montana election still can. He has to do it as himself, under his own name, on a report a Montanan can read.
The partisan-tilt claim fails the same way. The measure covers nonprofits, trusts, partnerships, corporations, trade associations, and unincorporated associations. That is the conservation groups and the unions as surely as the stockgrowers and the chamber. Support and opposition, every candidate, every party, every ballot issue, every side. There is no category in the measure that sorts by politics, and Koopman doesn't identify one — he identifies organizations he dislikes and assumes the measure was drawn around them.
The First Amendment and the Tenth.
The constitutional objection assumes the First Amendment decides this. It doesn't reach the question.
Citizens United held that government may not prohibit a corporation from spending in elections when that corporation holds the legal capacity to spend. Citizens United was a Virginia nonprofit with broad powers under Virginia law. Nobody in that case asked where the capacity came from — it was assumed on all sides. What the Court has never held is that Virginia had to put that capacity in the corporate form to begin with.
That is where the Tenth Amendment comes in. Corporations are not created by the federal government or by the Constitution. They are created by the states, and the authority to create them — and to say what they are — is a power reserved to the states. It has been exercised since before the Founding and it has never been federalized. Montana does not have to offer the corporate form at all. It does not have to grant limited liability, or perpetual existence, or the right to hold property in the entity's own name. Every one of those is a privilege Montanans chose to extend through their own law, and what Montanans extend, Montanans may define.
I-194 is Montana exercising that reserved power. It does not prohibit anything. It says what the powers of an artificial person are, and political spending is not among them.
So the objection has it backwards. The position that the First Amendment forbids this requires holding that Washington can tell Montana what must be in the Montana corporate code — that having chosen to offer the corporate form, Montana is federally obligated to load it with a particular power. No court has said that, and a conservative should be the last person to want it said. It would be a federal mandate on the most traditional area of state authority there is.
On revocation of business privileges. The analysis treats the consequence as novel. It isn't. The charter is a grant on terms: the state gives the entity existence, limited liability, and perpetual life, and the entity stays inside the powers it was given. An act beyond those powers has always been void, and forfeiture of the charter has been the state's remedy since the beginning of American corporate law. Montana isn't inventing a penalty. It's the remedy that has always applied when a corporation breaks the deal it made with the state.
Nothing stops a Montana ranch, business, church, or nonprofit from doing what it does. Lobbying is untouched. So is research, testimony, endorsement, organizing, and talking to members. What changes is that when an ad is telling Montanans how to vote, the money behind it has a name on it.
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