Foreword: The State of the Republican Form of Government in Montana

74 Montana L. Rev. 5 (2013)

32 Pages Posted: 7 Mar 2013 Last revised: 13 Jun 2013

See all articles by Anthony Johnstone

Anthony Johnstone

University of Montana School of Law

Date Written: March 5, 2013


This foreword situates Montana’s experience in broader themes of federal intervention in state republicanism. The foreword has two parts. Part I considers the recent federal constitutional challenges that dismantled elements of the republican form of government that prevailed in Montana for the past century. The Supreme Court’s curt decision in American Tradition Partnership represents a nationalizing approach toward state campaign finance, both because it does not distinguish between state and federal regulation of politics, and because it facilitates the increased influence of national political forces that can overwhelm state campaigns. That trend is evident in subsequent litigation in Lair v. Murry and similar cases that continued the federal judicial deregulation of Montana politics with an unusually disruptive effect on the 2012 election. Not until these federal challenges abated, temporarily, did the state courts have the opportunity to consider the concrete interests of Montanans, and the voters have their say.

Part II considers Montana’s response to the federal constitutional challenges. That response began even before the final resolution of American Tradition Partnership with the proposal of I-166, an initiative rebuking Citizens United and proposing “a level playing field in campaign spending” that included prohibitions on corporate campaign expenditures. Montana voters enacted that initiative by the same 3-to-1 margin that supported the Corrupt Practices Act a century before, but by the election the Supreme Court’s decision had mooted the initiative’s policy against corporate campaign spending. What remains is the voters’ overwhelming support for the principle of a “level playing field.” While the Supreme Court ruled out the most direct means of ensuring equality in campaign finance by “leveling down” corporate and other expenditures, there are several policy reforms Montana lawmakers can consider to fulfill the principle of greater political equality within the constraints imposed by the current federal constitutional regime. These include ensuring all campaign actors play by the same rules of accountability, strengthening the enforcement of those rules, and “leveling up” citizen participation in campaign finance. Although the anti-corporate policy of I-166 is a lost legislative opportunity to implement more practical reforms, its pro-equality democratic principle presents a new political opportunity for the people to reclaim their role in reforming republicanism in Montana.

Keywords: Republicanism, Montana, Citizens United, American Tradition Partnership, Campaign Finance

Suggested Citation

Johnstone, Anthony, Foreword: The State of the Republican Form of Government in Montana (March 5, 2013). 74 Montana L. Rev. 5 (2013), Available at SSRN:

Anthony Johnstone (Contact Author)

University of Montana School of Law ( email )

Missoula, MT 59812-0002
United States


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