OPINION: Would the real 28th Amendment please stand up?

I had the pleasure of attending the pro 28th Amendment gathering at the University of Montana on June 23, with the keynote speakers being retired Montana Supreme Court Justice James C. Nelson and President of American Promise Jeff Clements. The Flathead Valley’s own Rep. Frank Garner and former Secretary of State Bob Brown joined them in a support call for this measure.

The speakers staked their claim for veracity upon the 75 percent voter support in Montana of I-166, a ballot initiative that called for Montana elected officials to implement a policy opposed to the Citizens United victory in the U.S. Supreme Court. The key language of I-166 being “With this policy, the people of Montana establish that there should be a level playing field in campaign spending …”

Yet the issue I found most informative at the event was the exclusion of vital facts for the edification of the audience — for instance, the fact that I-166 was challenged in court before the election for being “legally insufficient” and was later overturned in 2013 (Rickert v. McCulloch, Lewis and Clark County).

Another bothersome fact that was addressed in the subsequently abridged question-and-answer segment of the program was that although 17 states now support a 28th Amendment overturning Citizens United (their claim), there was never provided to the voters of those states the final language of this 28th Amendment. Mr. Clements admitted there were “different drafts of the amendment on their website,” yet their proud assertion that 17 states and counting supported the amendment could not point to a single one of the versions universally supported. In fact these states mostly just agreed with similarly vague written policy positions we find in the “legally insufficient” I-166.

My question was simply that if unfettered spending of money was the sin damaging the elective process in America, why is it wrong for corporations to do it, yet not so with associations and unions? Mr. Clements replied “that was in one of the drafts ...,” yet I wonder why they need different versions? Why isn’t there just one clearly written 28th Amendment, which we can all reference to determine if we support it, rather than all this smoke and mirrors of support for a “policy”?

If in their words, they have already begun the constitutional process “on the application of the legislatures of two-thirds of the several states,” how can they assume support for a final amendment that was never put before the good people of the previous 17 states? I wonder if they include Montana in that 17 state count, after I-166 was struck down, and how many other state resolutions were subsequently struck down with the same legal findings.

Sen. Jerry O’Neil rose and suggested with some great analysis that this new amendment would in fact weaken and damage the First Amendment. It would be difficult to analyze this definitively because we in fact do not have a single version of the proposed 28th Amendment to study. Not to mention, this has been deemed unconstitutional by the U.S. Supreme Court: Spending money is a form of free speech. It could be easily argued this amendment would infringe on free speech by that measure alone.

 If you look at the groups sponsoring this event, including American Promise, Free Speech for People, Common Cause Montana, MontPIRG and others, just research their funding sources and you can readily assume the final version adopted would only apply to corporations (not unions), and thus not actually solve our problems. In fact, this would just perpetuate our problem more by allowing for unions and other associations to have unfettered access to political outcomes with spending money, while prohibiting corporations from having the same. This was in fact the way it was before the Citizens United case corrected that problem.

The only dog I have in this fight would be my hope that every group play by the same rules, and it seems that is what 75 percent of Montana would agree by reading the language of I-166. If you’re trying to prevent the assumed evils derived from unlimited spending during elections, the only path must include associations, foreign governments, unions, corporations, non-profits and even other states.

It is unfortunate that such a respectable group of Montanans would support such a noble cause as “a level playing field in campaign spending,” yet taint it with such obvious illusion, questionable process, and an outcome different than what the folks you’re selling to expect.

Skees, of Kalispell, is the Republican candidate in House District 11.