HELENA – Attorneys for Montana’s governor urged a federal judge Thursday to uphold an executive order that requires companies to report political contributions if they want to bid on large state contracts, in a case that could test whether so-called dark money groups can avoid public disclosure of spending.
A conservative advocacy group, the Illinois Opportunity Project, is challenging Gov. Steve Bullock’s 2018 executive order that requires companies to report political contributions, including to dark money groups, if they want to bid on large state contracts.
Dark money refers to spending meant to influence elections carried out by nonprofit groups who are not legally obligated to disclose their donors.
The Illinois Opportunity Project says its donors could face retaliation if their names became public, and the order could limit contributions to the group from companies that want to do business with Montana.
Bullock has said the measure allows Montana to bring transparency to spending by groups classified as social welfare organizations under the federal tax code. The influence of those dark money groups increased dramatically after a 2010 U.S. Supreme Court ruling in a case known as Citizens United that allowed unlimited corporate election spending, as long as corporations report it.
“This case appears to be an attempt to get the federal courts to change the law and take that power away from the states,” University of Montana law professor Anthony Johnstone said Thursday.
Under Bullock’s order, companies submitting bids for contracts valued at more than $25,000 for services or $50,000 for goods must disclose two years’ worth of political spending if the spending exceeds $2,500.
The government must prove why its interests outweigh the First Amendment rights of donors, attorney Daniel Suhr argued on behalf of the Illinois Opportunity Project, a nonprofit group that says it advocates for policies driven by the principles of liberty and free enterprise.
Montana’s government is just curious and has no valid reason to know who is giving money to organizations that are engaged in issue advocacy, Suhr told U.S. District Judge Charles Lovell.
The Illinois Opportunity Project has said it plans to send mailings to thousands of Montana voters before the November 2020 gubernatorial election urging the candidates to overturn Bullock’s executive order. The group argues Bullock’s executive order will hamper its ability to raise money to campaign against the order.
Lovell did not immediately rule.
No potential state contractors have stepped forward to say the law hurts them, assistant attorney general Chris Abbott noted.
He argued the Illinois Opportunity Project does not have standing to bring the case and that it’s not possible for the group to be harmed unless it wants to apply for a large value state contract.
The group’s court filings say it cannot provide any evidence of retaliation against its donors because they are private, but that donors to similar organizations faced retaliation.
“The logic of Citizens United was that corporations could spend in campaigns, but their customers and their shareholders would know that and could decide whether they wanted to support those corporations based on that information,” Johnstone said.