Are these messages an attempt to influence an election?
In 2012, the National Association for Gun Rights, a tax exempt "educational" organization based in Colorado, sent several mailers to residents in Flathead County that discussed candidate and state Sen. Bruce Tutvedt’s alleged attempts to “kill” a state bill encouraging gun ammunition manufacturing.
The mailer read: “Bruce Tutvedt: Working Against the Flathead’s Burgeoning Small-Arms Industry.” It further stated, “FACT: Flathead County was poised to get a new smokeless powder plant until Bruce Tutvedt took to the Senate floor and demanded it be killed. Now, thanks to Bruce Tutvedt, unemployment in the Flathead is nearly 11%. The mailer called on residents to “contact Bruce Tutvedt right away and DEMAND he apologize for killing new manufacturing for Flathead County".
The same gun association sued the state of Montana to overturn a 2015 law that requires any organization spending more than $250 on a message to influence voters within 60 days of the start of voting to report that spending and information about the organization to the Office of Montana Commissioner of Political Practices. The association claims the law violates its First Amendment rights.
In fact, the law doesn't ban the message, it requires the messenger to identify itself so Montana voters will know who is speaking and how much money it is using
This gun rights group doesn't want to report, but it wants to send more messages like the one that targeted Republican state Sen. Tutvedt seven years ago.
On Monday, a three-judge panel of the U.S. Ninth Circuit Court of Appeals affirmed U.S. District Judge Dana Christensen's previous ruling and upheld the Montana law requiring reporting by organizations that engage in "electioneering." The opinion, written by Circuit Judge Marsha S. Berzon, noted that Hawaii and Washington have similar laws, which have been upheld because they are tailored to the states' interest in informing their electorate and preventing circumvention of state election laws.
The Circuit Court panel threw out one provision of the Montana law, which required that the treasurer of electioneering organizations be a registered Montana voter. The judges said that requirement wasn't substantially related to any important government interest, but held that the rest of the law is constitutional and remains in force.
The case against Montana was filed by attorneys who have filed numerous other challenges to Montana election laws. The law was defended by Montana Attorney General Tim Fox, briefed and argued by assistant attorneys general Jere Stuart Segrest and Matthew T. Cochenour. Defending state law is one of the attorney general's duties, and this case raises an important question for Montana voters. What if the attorney general opposes election transparency? Would he or she fight for the Montana Disclose Act?
Among the candidates who have announced their bids for Montana attorney general in 2020, three were state lawmakers who voted on the 2015 Disclose Act that updated and strengthened campaign finance reporting standards. Democrat Kimberly Dudik voted for the transparency bill, Senate Bill 289, which was sponsored by Republican Duane Ankney and strongly supported by Democratic Gov. Steve Bullock. Republicans Austin Knudsen, then serving as speaker of the House, voted against SB289. How hard would for him to fight for its provisions if he were attorney general?
In the candidate field for Montana secretary of state, Scott Sales, a Republican and Senate president, and Republican Rep. Forrest Mandeville voted no on SB289. Bryce Bennett, a Democratic candidate, voted yes. The secretary of state is Montana's top elections official. Do you want someone overseeing elections who supports accountability and transparency in campaigns? Or someone who has a record that would allow outside spenders to secretively "educate" Montana voters about our candidates and ballot issues?
Supporters of open government and voter empowerment cheer this week's Ninth Circuit ruling for transparency. The case also reminds up that defending our elections against dark money — negative campaigning by secretive spenders — is an ongoing battle.
The Ninth Circuit opinion may be read at the link with this Gazette opinion at billingsgazette.com.