On Tuesday, an assistant Montana attorney general is scheduled to defend Montana's campaign finance law before the 9th U.S. Circuit Court of Appeals in Portland, Oregon. The U.S. Supreme Court has effectively upheld this law twice since the start of 2019, yet the legal battles continue.
As proponents of transparency in elections, we applaud the High Court's decisions upholding Montana's campaign contribution limits in January and its spender disclosure requirements last week. We also commend the tireless defenders of these public accountability laws: Montana Commissioner of Political Practices Jeff Mangan, Montana Attorney General Tim Fox and their hard-working staff attorneys.
One might think that the law is settled because the U.S. Supreme Court has just declined to review a challenge to the Montana requirement for campaign spenders to disclose who they are by filing with the COPP. Not yet. National law firms dedicated to challenging state campaign finance laws have made Montana a focus of their efforts.
The case declined by the U.S. Supreme Court last week was filed by Montanans for Community Development, which claimed it was prevented from exercising freedom of speech because it wanted to distribute information about candidates for public office less than 60 days before voting starts — without disclosing who was funding the mailers as required by Montana law.
Montanans for Community Development challenged the state law in federal court in 2014 and then added to its lengthy complaint in 2015 after the Montana Legislature and Gov. Steve Bullock substantially strengthened campaign disclosure requirements. The DISCLOSE Act passed with bipartisan support because officials from both parties had recently been targeted by negative ads. Democrat Bullock, as well as the bill's chief sponsor, Duane Ankney, R-Colstrip, and the House sponsor, Rep. Frank Garner, R-Kalispell, all had been targeted.
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Although Montanans for Community Development identified itself as a tax-exempt 501(c)4 social welfare organization, it never actually received that IRS tax exemption. According to a U.S. District Court order issued in October 2016, Montanans for Community Development "was organized at an initial meeting on October 2, 2013, and has only had one formal meeting since. MCD has no reported members, telephone number, email address or website. Though MCD filed articles of incorporation with the Montana secretary of state shortly after its initial meeting, its status as a Montana corporation was dissolved by the secretary of state on Dec. 1, 2015. MCD has neither applied for nor received recognition from the IRS regarding its purported tax exempt status."
MCD had templates made for mailers before the 2014 General Election, including one naming a Billings Republican state House candidate, but they were never distributed.
Apparently, MCD was created as a vehicle for challenging Montana campaign laws.
The law has withstood the challenges and remains vital because, as U.S. District Judge Dana Christensen of Missoula wrote: "Due to the dramatic rise in election spending in the last few decades, Montana's voters are inundated with political television advertisements and mailers. These communications seek to inform (or misinform) the voters, and sway their opinions. Providing Montana voters with information about individuals and groups competing for their attention serves important government interests."
The purpose of campaign finance law is to serve the public — not the candidates or the spenders. The timely, online disclosures required by Montana law help protect the public's right to know who is working to influence our elections.