Law Commons^™

Mapping The Treasure State: What States Can Learn From Redistricting In Montana, Caitlin Boland Aarab, The Honorable Jim Regnier

Montana Law Review

No abstract provided.

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.

Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine, Jesse Kodadek

Montana Law Review

Expensive Free Speech: Western Tradition Partnership And The Silencing Of The Private Attorney General Doctrine

Reichert V. State Ex Rel. Mcculloch And The Open Door For Increased Pre-Election Substantive Judicial Review, Carina Wilmot

Montana Law Review

In Reichert v. State ex rel. McCulloch,1 the Montana Supreme Court addressed the constitutionality of a legislative referendum proposing changes to the qualification and selection of Montana Supreme Court justices. In reviewing the referendum, the Court focused on the threshold issues of ripeness and recusal before addressing its constitutionality.2 Reichert highlights the complexity of ripeness as a threshold question and clarifies when and how the Court conducts pre-election judicial review.

This note focuses only on the procedural holding of ripeness, from which Justice Baker dissented. This note does not analyze judicial recusal or the constitutionality or severability of the referendum …

A Constitutional Right To Lie In Campaigns And Elections?, Richard L. Hasen

Montana Law Review

After Alvarez, the state may no longer have the power to ban or punish malicious false campaign speech, whether made by candidates or others. The result of this conclusion is that we are likely to see more false campaign speech in elections, including some brazen lies. With candidates’ pants increasingly on fire, and with the wooden noses of campaign consultants growing ever longer, the question is whether counterspeech—from opposing candidates, the media, and perhaps the government—will be enough to give voters the tools they need to make intelligent choices. I take solace in Jack Shafer’s depressing observation that most voters …

The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall

Montana Law Review

In its Western Tradition Partnership decision, the Montana Supreme Court ruled that the constitutionality of state campaign finance restrictions should be reviewed with particular reference to the political history and traditions of the state enacting the regulation. In so holding, the Montana Court recognized that the states have different political cultures and that these different political cultures can lead to very different regulatory concerns. On this basis, the Montana Court concluded that a type of campaign finance restriction that may be unconstitutional when applied to national elections or to elections in one state might be constitutionally permissible when applied to …

Keynote Address: On What Being A (Small R) Republican Means, Lawrence Lessig

Montana Law Review

This Article is an edited, annotated transcript of the Keynote Address delivered by Professor Lawrence Lessig at the Montana Law Review’s Honorable James R. Browning Symposium on Election Law, The State of the Republican Form of Government in the States: Debating Democracy’s Future, held at The University of Montana School of Law on September 27, 2012.

Taking Opt-In Rights Seriously: What Knox V. Seiu Could Mean For Post-Citizens United Shareholder Rights, Ciara Torres-Spelliscy

Montana Law Review

Our nation has struggled with regulating money in politics for centuries. In the normal course of events, the political branches, the 50 states, or voters choose the contours of such regulations. Knox is remarkable because it makes the Supreme Court the source of a national paycheck protection rationale, at least in the case of special assessments for public-sector unions. But Knox raises the intriguing possibility that a future Supreme Court (instead of a state legislature or Congress) could impose a shareholder consent rule. In the meantime, the onus is on state legislatures, Congress, administrative agencies, and American voters to bring …

The Separation Of Electoral Powers, Edward B. Foley

Montana Law Review

The separation of electoral powers, as outlined in this essay, is a progression in the evolution of republican political theory. Just as Madison improved upon Montesquieu, so too is it necessary for our generation to improve upon Madison in light of our experience with the Madisonian system since the founding of our federal republic. I harbor no illusions that the system described will be adopted anytime soon. Yet aspects of this system are already being put into place, as increasing numbers of democratic republics—both American states and others abroad—adopt nonpartisan institutions for different aspects of the electoral process (whether redistricting, …

Foreword: The State Of The Republican Form Of Government In Montana, Anthony Johnstone

Montana Law Review

This Volume marks an opportunity to reassess the impact of these recent federal interventions on the republican form of government in the states. As the varied contributions demonstrate, it also marks an opportunity to reassert a role for the states in reforming republicanism in the wake of Citizens United and related developments.

Evidencing A Republican Form Of Government: The Influence Of Campaign Money On State-Level Elections, Edwin Bender

Montana Law Review

Evidence compiled by the Institute over the last decade from all 50 states demonstrates that understanding the role money plays in elections and public policy development, and specifically how campaign-finances are regulated, can improve the representative forms of government in the states. If a state wants more inclusive elections—contested as well as monetarily competitive—then data shows that adjusting contribution limits or funding mechanisms can have a dramatic effect. Offering incentives for donors to participate and for candidates to seek out more small-dollar donors can also have a positive effect on both the number of candidates who run and thenumber of …

The Right To Participate, The Right To Know, And Electronic Voting In Montana, Brian J. Miller

Montana Law Review

Electronic Voting