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Montana's Freedom Caucus wanders way out of its lane – Daily Montanan [1]

['More From Author', 'April', 'James C. Nelson']

Date: 2023-04-04  

The March 23, Independent Record reported that the legislature decided to keep on the books, as part of Montana’s Code, the “Clean Campaign Act,” which federal District Court Judge Donald W. Molloy ruled last year was unconstitutional, as violating the First Amendment.

According to the report, Montana’s legislature decided that the court “wander(ed) out of its lane” when it ruled on the constitutionality of the law passed by the legislature.

The legislature has a short memory, indeed.

Following the U.S. Supreme Court’s decision in the Citizens United case in January 2010, Western (American) Tradition Partnership, a conservative, dark money organization challenged Montana’s 1912 Corrupt Practices Act as being in violation of the high court’s decision. The Montana Supreme Court ruled that Montana’s Act was not controlled by Citizens United for reasons unique to this State—a sort of “made in Montana” argument. Not surprisingly, the U.S. Supreme Court disagreed, ruling summarily: “Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case. . .. The judgment of the Supreme Court of Montana is reversed.”

Citizens United created a near absolute right of political free speech under the First Amendment free speech clause. Molloy’s decision was correct; the Clean Campaign Act will likely not pass constitutional muster if the State is sued trying to enforce it—which it probably will be. Like it or not, Citizens United controls over the Clean Campaign Act, just as it did over the Corrupt Practices Act.

The more nefarious part of the decision to keep the Clean Campaign Act on the books in the face of Molloy’s decision, however, is the legislature’s determination that it is a self-appointed interpreter and arbiter of the laws it passes—a role, heretofore, committed exclusively to the courts.

Since the 1803, U.S. Supreme Court decision in Marbury vs. Madison, state and federal courts have exclusively exercised a rule of law called judicial review. This means that the courts, exclusively, determine what the law is, and if that law violates the Constitution, then the law is ruled unconstitutional and, typically, is of no force or effect.

The present supermajority and the Freedom Caucus in the legislature does not agree with Marbury vs. Madison or judicial review exercised exclusively by the courts– notwithstanding that this doctrine is the law of the land.

To that end this legislature has proposed SJ 15, a resolution which provides, among other things, that no single branch—for example, the judicial branch—has the power to exercise judicial review and that it is not the judiciary’s role to exclusively say what the law is or to issue final decisions that are binding on the legislative and executive branches of government.

This supermajority and Freedom caucus has decreed that judicial review is a “myth”—their words, not mine—and is based on a “faulty understanding” of Marbury vs. Madison.

And so, poof, just like that, 220 years of the rule of judicial review practiced by every court in the country—none of which understood Marbury vs. Madison— suddenly disappears in Montana.

And, it appears that this supermajority and Freedom Caucus, expects this to be the law from here on out as they direct the Secretary of State to send a copy of SJ 15 to basically every public official and bureaucrat in Montana, and to the U.S. Supreme Court and Montana federal District Court—just to show those stupid judges who’s boss.

Talk about wandering out of one’s lane; this supermajority and Freedom Caucus has wandered out of its lane, jumped the median and is driving hell-bent up the interstate against traffic.

Note to Legislature: SJ 15 is dead on arrival.

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