Rob Natelson: The Montana Supreme Court Ballot Issue Jurisprudence: “Liberal, Sí — Conservative, No!”

Many Montanans have complained of the state’s supreme court’s leftward bias. But law is such a specialized area, that this bias can be hard to illustrate in ways non-lawyers can understand.

But everyone can see it in how the Montana justices handle ballot issues.

In Montana, the legislature and citizen petitioners enjoy the right to place initiatives and referenda on the ballot. Opponents also are free to challenge those measures in court.

The state supreme court has heard many ballot-issue cases. Some of the cases involve measures that are truly non-partisan, or can’t be classified as “liberal” or “conservative.” But many others do involve measures that can be classified that way.

 In my MPI study of the court issued late last year, I identified 18 cases in which the ballot measure under attack could be classified as either “conservative” (tending to reduce the power of government) or “liberal” (tending to increase the power of government). In 12 of the 18 cases, the measures challenged were “conservative.” In six, they were “liberal.”

The results, tabulated in a chart on page 18 of the study, show a dramatic difference in how the court treats conservative and liberal ballot issues.  Of the 12 conservative measures, the court upheld only two and struck down 10.  But of the six liberal measures, the court upheld every one! Since 1996, moreover, the pattern was perfect: every challenged conservative measure was struck down, every liberal measure upheld.

There were some particularly striking cases. For example, in one dispute the court voided a proposed conservative measure because it did not have legal force—it was an expression of popular opinion: what the court called a mere “resolution.” Yet in a later case, the court upheld a liberal initiative (I-166, which I discussed in an earlier post), although it, too, was a mere resolution.

Now, what made that pair of cases particularly perverse is that, under the law, they should have been decided precisely the opposite way. This is because the conservative measure was a proposed constitutional amendment, and the state constitution contains no rules against “resolutions” being part of the constitution. (In fact, resolutions or “recitals” are common in state and federal constitutions.) On the other hand, the liberal measure was a statutory initiative, and the state constitution (Article III, Section 4) specifically requires that statutory initiatives be genuine “laws” rather than mere expressions of opinion.

So the court struck down a conservative measure that was stronger on the law, and upheld a liberal measure that was weaker!

You can read the entire study here.

More On Medicaid Expansion

Had a good time on KMMS this morning talking about Medicaid expansion so I thought I’d jot down a few notes from the show.

If you’re on MPI’s website you’re already active and aware on policy issues so I won’t belabor the point with a lot of background, but in a nutshell the Governor is about to roll out his plan to expand Medicaid as our masters in Washington have directed to include people earning up to 138% of the federal poverty level. That’s a bad idea for several reasons, as I argued in an Op Ed back in January. We’ll have a lot more on this soon, but here’s a quick outline:

  1. It’s bad welfare policy: According to an Urban Institute study that pretty much everyone is using, 43% of those added to Medicaid in MT would be under 35 years old and 75% would be childless. Unless they’re disabled, putting young, unfettered individuals on public assistance without some kind of work or payment in kind system is unfair to taxpayers, creates all the wrong incentives, and traps them in an entitlement web that’s tough to get out of.
  2. Will cost taxpayers more than just the expansion: Hospitals claim it will save taxpayers and those who are privately insured money because putting more people on Medicaid will reduce their unreimbursed or charity care costs. Don’t believe it. In states like Maine where they’ve already been down this road, those costs increased as people moved from private insurance to Medicaid and uninsured numbers remained virtually unchanged. Just think about it: how will adding 50,000 people from an at-risk population (lower incomes equate to poorer health) to a program with low and sinking reimbursement rates save money?
  3. Job numbers are probably overstated: We need to do a little more homework on this – and will – but claims of more jobs from “free” federal money have been wildly overstated in the past and probably are now as well. And besides, as argued in a New England Journal of Medicine paper called “The Health Care Jobs Fallacy,” if the same health care outcomes can be achieved with fewer resources that leaves more for schools, transportation, safety, and other public priorities.
  4. And finally, it ain’t free money: Over 30% of the “free” money will be borrowed by the federal government, and the remaining will either paid for by you on April 15th or come out of other spending priorities. Direct costs to Montana taxpayers of expansion range from $50 million to around $150 million depending on whom you believe, and there are few examples of entitlement program cost estimates being understated. President Obama’s last two budget submissions included increasing the states’ share of Medicaid reimbursements, so talk of 100% federal cost share is doubtful in the future, and so-called circuit breakers that would cancel expansion if the feds renege are meaningless. Nobody is going to take away this benefit once it’s been granted, so let’s wait a couple of years, see how they like it in other states, and then make an informed decision.

Rob Natelson: The Misplaced “Philosophy” of I-166

    In the 2012 elections, Montanans overwhelmingly approved I-166—a measure that has no substantive effect, but expresses the “philosophy” (the word used in I-166) that corporations have no First Amendment rights.

When you read I-166 carefully, you have to wonder what the voters were thinking when they passed it. In case your own thoughts on the subject are fuzzy, here are some cool, clarifying fresh breezes:

1.     Corporations are not alien cyborgs from the planet Bloton. They are merely teams of people working for a common purpose.

Some are big and rich, but most (especially in Montana) are small and relatively poor.

People incorporate because the state pushes them to.  The state offers them the right to (1) use the corporation’s name in lawsuits rather than listing all the owners individually and (2) dispense with clumsy liability disclaimers to protect owners’ and members’ personal assets. (Corporate assets are still vulnerable.) But the team choosing incorporation has to pay extra taxes, extra fees, disclose a lot of private information, and abide by numerous state rules.

2.     The “philosophy” of I-166 would destroy freedom of the press.

Because of how state law is structured, nearly all media companies are forced to incorporate. If groups choosing the corporate form have no constitutional rights, then they have no freedom of the press. Some of the greatest victories for freedom of the press were won only because media corporations could defend their rights in court (for example, the Pentagon Papers case).

So if your “philosophy” is that the politicians should be able to bully all the newspapers and broadcasters into silence, then I-166 is for you!

3.     The “philosophy” of I-166 would heavily impair freedom of speech.

State law effectively pushes political associations to incorporate. If the “philosophy” of I-166 were to prevail, those associations would have no free speech rights.

In the 1950s, racist state officials in the South tried to crush pro-civil rights membership corporations like the National Association for the Advancement of Colored People (NAACP).  Those state officials didn’t think corporations had First Amendment rights, either. Fortunately, the Supreme Court disagreed. (NAACP  v. Alabama).

4.    I-166 has nothing to do with “leveling the playing field.”

I-166 says it seeks a “level playing field in campaign spending.” But does it?

The “philosophy” of I-166 restricts corporate spending, but not union spending. Even worse, it says nothing about controlling government political spending, such as lobbying and other government interventions in the political system. Government political spending is a MUCH bigger problem than corporate spending, because government political expenditures are bigger, largely hidden, and financed with money forced from people.

5.    Campaign finance laws are counter-productive.

In the real world, government campaign laws always are politically manipulated, but still yield unintended results. As I pointed out last week, the 1912 Montana initiative that abolished corporate spending may have INCREASED the power of the Anaconda Company over Montana politics.

Montanans need to reconsider what they did when they approved I-166. And make sure that they are more wary in the future.