Disclosing Dark Money

Federal lawsuit challenging scope of Montana's campaign finance laws takes turn in favor of disclosure

By Tristan Scott
The State Capitol building in Helena. Beacon file photo

A Helena nonprofit group’s effort to prevent Montana’s political practices commissioner from enforcing state campaign finance laws met a stumbling block last week when a federal judge ruled the group’s argument for exemption from campaign finance disclosure didn’t pass muster.

Montanans for Community Development, which bills itself as a nonpartisan group “to promote and encourage policies that create jobs and grow local economies,” is represented by James Bopp, the Indiana attorney who won the landmark Citizen United v. Federal Elections Commission case.

Last September, two months prior to the election, the group filed suit to stop Montana Political Practices Commissioner Jonathan Motl from enforcing state campaign finance laws requiring the group to disclose who was paying for advertising mailers promoting or opposing a particular candidate or issue.

The group argued that as a tax-exempt nonprofit it should not qualify as a political committee subject to disclosure requirements.

In the last election cycle, so-called “dark money” groups were accused of sidestepping the law to attack candidates through anonymously funded mailers on the eve of elections. The issue gained traction last session when the Montana Legislature passed the Disclose Act by one vote, broadening the scope of campaign reporting and increase the transparency of outside spending groups.

In June, the group amended its lawsuit in U.S. District Court in Missoula to include aspects of the Montana Disclose Act.

Motl said the current lawsuit could have far-reaching consequences to the state’s campaign finance laws and lead to a collapse of the regulations that keep outside groups from coordinating with candidates and spending money to boost or oppose their campaigns.

Motl said there’s nothing in the law preventing the brand of campaigning that groups like MCD are adopting, but the voting public has a right to know who’s funding it.

“These disguised political campaigning attacks that have been driving Montana bonkers need to be fully disclosed and made transparent,” Motl said. “That’s what the law says, and this flies in the face of the law.”

In an order last fall, U.S. District Judge Dana Christensen agreed that the group’s lawsuit is sweeping in the relief it seeks.

“The relief requested by MCD is breathtaking in its scope, and if the court was to grant this relief, on he eve of midterm elections, it would leave the Montana commissioner of political practices with essentially no laws to enforce and no powers of enforcement,” he wrote.

The group argued that its desired speech – specifically, to send out mailing advertisements supporting or opposing candidates or policies – should not qualify it as a political committee subject to disclosure requirements. The ads it seeks to publish and distribute tout energy development and blast environmentalist groups, while picturing legislative candidates who support or oppose its views.

The lawsuit argues that Montana’s definitions of campaign contributions and expenditures are too broad and vague to be constitutional, and says the definition of a political committee and the requirements placed on them to file disclosure reports, shouldn’t include groups such as Montanans for Community Development that are registered for nonpartisan issues advocacy.

In an Aug. 7 ruling, Christensen ordered the group to produce additional evidence supporting its argument that it should qualify for exemption as an apolitical organization.

He wrote: “In this case, MCD alleges that a broad selection of Montana’s election laws are unconstitutional. The implication of such a finding would, of course, drastically alter the election landscape in the State. The broad sweeping nature of the relief requested and the relative importance of this litigation weighs in favor of disclosure.”

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