HELENA — Montana is the latest state to overhaul its campaign-finance rules in an attempt to cast out dark money after the U.S. Supreme Court allowed corporations to spend unlimited amounts in elections.
The architect of the changes in Montana said the new rules will create a high level of transparency in the state with a history of election corruption, and will be effective because of Montana’s relatively small population of 1 million people.
“You can put a lightbulb in a big cave and not see very far,” Montana Commissioner of Political Practices Jonathan Motl said. “In Montana, you’re going to see a lot of corners.”
The changes — expected to be adopted by next week — will require more organizations to disclose their donors and spending, add restrictions to coordination between candidates and outside organizations, and require candidates to file same-day electronic disclosures of their contributions.
Some people aren’t convinced the reforms will live up to the promises. Paul Ryan, deputy executive director of the nonprofit Campaign Legal Center in Washington, D.C., called Montana’s efforts a squandered opportunity.
“I don’t believe Montana’s new disclosure law will in any way solve the dark money problem,” Ryan said Wednesday.
Since the U.S. Supreme Court in 2012 applied its Citizens United ruling to state elections, individual states have been rewriting their campaign laws to require greater disclosure from the corporations and organizations that are now allowed to make independent expenditures.
Such expenditures involve money spent to influence an election without coordination with a candidate’s campaign.
Similar efforts have failed at the federal level, with Congress rejecting legislation that would have required groups registered with the IRS as 501(4) social welfare organizations to disclose their donors.
The Supreme Court’s 2012 ruling on state elections tossed out a century-old Montana law that was crafted in the days of the Copper Kings to fight rampant corruption and election-buying. In the wake of that decision, nine legislative candidates were accused of illegally coordinating with and accepting contributions from a conservative 501(4) organization.
The 2012 ruling led to the Montana Legislature passing the Disclose Act earlier this year, aiming to make election campaigns more transparent. Motl has since spent months overhauling the state’s campaign rules to comply with the new law, with a final version to be adopted for the 2016 primary elections.
Motl said the overhaul will set a level of transparency that is among the highest in the nation. Ryan disagreed.
“For everyone who thought it would fix the dark money problem, I predict they will be disappointed,” Ryan said.
A main problem, as Ryan sees it, is the test used to determine whether an organization is a committee required to disclose its donors and spending. The Montana test requires the commissioner to determine whether “the primary purpose” of an organization is to support or oppose candidates or ballot issues.
That is a slight change from an earlier version that used the broader term “a primary purpose,” but it narrows the disclosure test enough to create a loophole for 501(c)(4) organizations that don’t want to reveal their donors, Ryan said.
Montana’s new candidate coordination limits also lack a ban preventing candidates from fundraising for outside groups, Ryan said.
California, which is often used as an example of strong transparency laws, presumes an outside organization is coordinating with a candidate if they share consultants or staffers, or if the candidate or the candidate’s family members appear at a fundraiser.
“I would definitely say we are leaders in this area,” said Jodi Remke, chairwoman of California’s Fair Political Practices Commission. “That’s mainly because we’ve been dealing with this longer, so we had a chance to get ahead of it.”
Anthony Johnstone, a University of Montana law professor who specializes in constitutional and election law, said Montana’s overhaul could have gone further but, overall, it’s an improvement.
It adopts innovative responses to problems Montana has seen since Citizens United, such as defining what election activity must be reported and disclosure requirements for ads released within 60 days of an election, Johnstone said.
“This is a Citizens United-era law,” he said. “It may not be the absolute best one, but it addresses the problems we’ve seen in Montana since Citizens United.”