The Federal Elections Commission has closed a national Democratic group’s complaint against 2018 U.S. Senate candidate Russ Fagg without faulting the Billings Republican.
In late May, the commission split on whether to dismiss allegations that Fagg’s exploratory committee was improper, or conclude there was no reason to believe election laws were violated. Instead, commissioners agreed to close the file.
“It was a big deal to me because my character and my integrity and my ethical boundaries were always important to me,” Fagg said of the ruling.
Now 20 months old, the complaint was filed in 2017 by the American Democracy Legal Fund, which alleged Fagg’s exploratory committee had operated as a full-fledged campaign for four months before Fagg’s announcement that October.
Fagg had set up the exploratory committee while still serving as a Yellowstone County District Court judge. He could not have been both a candidate and a judge, but an exploratory committee allowed him to test the waters.
“Remember the reason I did the exploratory committee. I could have resigned my position as a judge and avoided the whole thing, but I didn’t want to leave the district in the lurch. I felt like it was an obligation to serve and I wanted to go out with my head held high and my caseload current.” Fagg said Monday. “Even the weekend before I announced, I had serious reflection. ‘Do I really want to do this?’”
The FEC's “testing the waters” rules for exploratory committees don’t allow those who are candidates to advertise their intention to run for office, or raise money beyond what’s needed for an exploratory committee. Telling people you’re a candidate is also not allowed; neither is announcing party affiliation.
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ADLF accused Fagg of slipping into candidacy in August 2017 when his exploratory committee website began posting criticisms of U.S. Sen. Jon Tester, D-Mont. He had also collected a few endorsements.
Several people told Fagg to forget about the complaint and move on. In elections, FEC complaints are easily weaponized with the complaining party circulating the complaint in the media while the commission, as a general policy, declines to discuss it. In ADLF’s case, the organization began contacting the media about its complaint more than a week before the FEC acknowledged receiving it. The rulings in these complaints come long after elections have been decided.
Fagg finished second to Republican Matt Rosendale in the 2018 Montana election. In a four-candidate race, Rosendale won 34 percent of the vote to Fagg’s 28, a difference of 8,394 votes.
Incumbent Tester defeated Rosendale in the general election by about 18,000 votes, or 3 percentage points.
Fagg said Monday he’s “still kicking the tires” on a 2020 campaign, but mentioned no particular office.
“I still feel like we’re headed in the wrong direction, and I’d still like to be part of the solution,” Fagg said.