I blogged the other day about the corporate law aspects of Montana's pending state constitutional amendment that would " advance the philosophy that corporations are not human beings with constitutional rights." As I thought about it some more, however, a very interesting wrinkle struck me.
The amendment states, in pertinent part, that:
It is policy of the state of Montana that each elected and appointed official in Montana, whether acting on a state or federal level, advance the philosophy that corporations are not human beings with constitutional rights ...
The amendment further provides that:
(1) Montana’s congressional delegation is charged with proposing a joint resolution offering an amendment to the United States constitution that accomplishes the following:
(a) overturns the U.S. Supreme Court’s ruling in Citizens United v. Federal Election Commission;
(b) establishes that corporations are not human beings with constitutional rights;
(c) establishes that campaign contributions or expenditures by corporations, whether to candidates or ballot issues, may be prohibited by a political body at any level of government; and
(d) accomplishes the goals of Montanans in achieving a level playing field in election spending.
(2) Montana’s congressional delegation is charged to work diligently to bring such a joint resolution to a vote and passage, including use of discharge petitions, cloture, and every other procedural method to secure a vote and passage.
What I know about state constitutions could be inscribed on the head of a very small pin, but this amendment intuitively strikes me as absurd. Setting aside its inconsistency with Edmund Burke's justly famous dictum -- "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion." -- on what possible basis can a state constitution bind officials acting on a "federal level" or "charge" a state's congressional delegation with doing anything?
After all, Burke also noted that "authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,--these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution." What was true of England surely is also true of our representatives.
On top of which, there is the whole question of federal supremacy. Didn't we settle back in 1864 that states can't tell the federal government what to do?
I'm going to forward this post to some friends with greater constitutional law expertise than that I possess in hopes that we might get some insights on this seemingly over the top proposal.
Update: Here's one of those friend's answer:
States can urge their elected officials to advocate for certain positions all they want. It cannot be binding, and one attempt to tarnish the elected official with a "scarlet letter" in a subsequent election was held to be unconstitutional. Arkansas (I think), after losing the Term Limits case, decided to pass an ordinance similar to Montana's, urging its representatives in Congress to push for a Term Limits amendment. Those who did not were designated on the next ballot as "refused to support Term Limits Amendment". The Supreme Court held this to be unconstitutional.
