The Transparent Election Initative and Citizens United

“If the SAVE act passed, every single state would flip to red when we stop illegals from voting!”

This statement is really, really believed to be true by a certain group of people. Despite overwhelming evidence to the contrary, many people still believe that non-citizen voting is swaying our elections.

They ignore, however, things that legitimately may influence our elections: corporate spending the dark money paid to politicians. Organizations like Citizens United have sought to make sure corporations and unions can spend without limitations, effectively fusing private wealth and political power.

Today, I will look into an effort to quell this unending spending: The Transparent Election Initiative (TEI), also called the Montana Plan. Inspiration for this post came from a reader and friend, Joe B. Thanks, Joe!

I’ll start by examining what Citizens United is and how it’s impacting our political system.

Citizens United is NOT for Citizens

You’d think with a name like Citizens United, the group would be promoting something that is for the Citizens. You would be incorrect.

According to the Brennan Center for Justice, “Citizens United arose in 2007 when a conservative nonprofit organization challenged campaign finance rules that stopped it from promoting and airing a film criticizing then presidential candidate Hillary Clinton”.

The Supreme Court decided in 2010 that Citizens United was within its First Amendment rights to spend its money disseminating the film. Which honestly, I agree with. Not that groups deserve first amendment rights, but that people can criticize a presidential candidate. The problem is, “…rather than opining solely on the case before it as it had been asked to do, the Court took the opportunity to entirely strike down century-old prohibitions on corporate “independent” spending — money that doesn’t go directly to a candidate or party. This applied to labor unions as well. Lower courts applying the ruling extended it to invalidate almost all fundraising and spending restrictions for groups that purport to be separate from candidates, many of which are today known as ‘super PACs’”.

The justification for this is essentially that “spending” is the same as “speech”, and held two incorrect assumptions that would protect against corruption via PACs:

The justices who decided Citizens United held that independent spending could not pose a substantial risk of corruption on the erroneous assumption that the money wouldn’t be under the control of any single candidate or party.  They also assumed that existing transparency rules would require all the new spending they were permitting to be fully transparent, allowing voters to appropriately evaluate the messages targeting them.

Both assumptions have proven to be incorrect. 

While super PACs and other outside spenders are supposed to be separate from candidates and parties, they usually work in tandem with them — to the point where affiliated super PACs that can raise unlimited money are now integral to most major campaigns. Legal loopholes also mean that many of these groups can keep their sources of funding secret.

The impact of this ruling has been, expectedly, a massive raise in spending from ultra-wealthy donors, corporations, and special interest groups. Using non-profits

Traditionally, PACs are legally allowed to contribute $5000 per candidate per campaign. After the CU ruling, federal courts ruled that outside groups could accept unlimited contributions from both individual donors and corporations, as long as the groups didn’t give directly to the candidate. This gave rise to the concept of a Super-PAC; a group with essentially limitless funding to support the campaign of a candidate.

The rise of dark money followed the CU ruling as well. Dark money rose from under $5M in 2006 to over $1B in 2024. If you’ve thought ahead, yes: this does allow foreign nations to invest in American campaigns without their donation being known.

So now that we are aware of Citizens United, the concept of Super-PACs, and Dark Money, we can get into what TEI wants to do.

The TEI’s Goals

TEI started when Montana pushed for Article XIII, an amendment to the Constitution of Montana. The Article is short and sweet:

The State extends to artificial persons only those powers defined as artificial person powers, and no others, as a condition of state-conferred legal status and charter privileges. Any action taken outside those powers with respect to political spending power is ultra vires and void; any such ultra vires exercise results, as a matter of law, in the withdrawal of all charter privileges, subject only to reinstatement pursuant to procedures enacted by the legislature during its first regular session following January 1, 2027, upon full disgorgement of amounts expended in such activity and certification of future compliance, together with such additional conditions as the legislature considers appropriate.

Here are the definitions:

• “Artificial person” means an entity whose existence or limited liability shield is conferred by Montana law, including an entity organized or existing under the laws of another jurisdiction that is authorized to transact business, is otherwise transacting business, or holds property in Montana. An entity organized or existing under the laws of another jurisdiction that directly or indirectly undertakes, finances, or directs the exercise of political spending power in the state of Montana is conclusively considered to be transacting business in this state for purposes of this section.
• “Artificial person powers” means powers necessary or convenient to carry out lawful business or charitable purposes as provided by statute, excluding political spending power.
• “Charter privilege” means any legal benefit to an artificial person that exists only because the state of Montana confers it.
• “Political spending power” means the legal capacity to expend money or anything of value to influence the outcome of a vote of the electorate.
  • The term does not include the distribution of bona fide news, commentary, or editorial content unless the publishing entity is owned or controlled by a political party, a political committee, or a candidate

TL;DR: Montana wants to stop non-human entities, like corporations and unions, from spending willy-nilly. They can still publish news, commentary and editorial content that supports their candidate, but only if the candidate does not own the news source. This was yet to pass, but is a very interesting initiative when it comes to representing the needs of the American people, not American Corporations and Foreign Interests.

Let’s hope it passes and becomes the precedent.

Why Super PAC Spending is Harmful

Imagine you’re part of a run-of-the-mill PAC, with $5,000 to legally spend to support your candidate. If you run an ad campaign on a popular site, you’ll probably be able to afford to get your message on 5000 or so screens.

If you’re a Super-PAC? You can reach unlimited people. You can run print, digital, mail, and other ad campaigns in support of your candidate. You can willfully spread misinformation about the opposition, and when misinformation is spread enough, it essentially becomes a fact.

If I were a foreign government who knows a candidate is impartial to my goals, I would happily donate to a super-PAC that would hide my identity and help spread misinformation about the candidate I dislike.

You can see how that can quickly become a problem. Especially considering most people in the U.S. follow a single source of news. One well-placed ad on Fox News or CNN could drastically impact voter’s opinions.

Conclusion

I fully believe that initiatives like TEI will bring more integrity to our elections than SAVE will. We have a right to know where our information comes from, and no single entity should be allowed to spend the GDP of a small country to ensure their chosen candidate sits in the White House.