Today, Montanans for Community Development (“MCD”) asked a Montana federal court to prohibit the Commissioner of Political Practices and other state officials from enforcing unclear campaign finance laws and prevent those officials from investigating violations until constitutionally adequate protections are in place for those accused of violating such laws.
MCD is a 501(c)(4) corporation that wants to promote and educate Montanans about opportunities for economic development in the state. It wants to circulate ads in early October promoting an energy plan for energy development and Montana jobs. The ads also mention grassroots activist John Sizemore, who has helped promote the cause, as well as Mary McNally, an environmentalist and legislative official who has opposed such efforts. Both are candidates on the November ballot.
Under Montana law, it is unclear whether MCD’s ads mean it is a political committee and whether its spending must be reported. Federal courts have made clear that simply mentioning a candidate near an election does not make an organization a political committee. Yet in 2013, a Montana court fined a 501(c)(4) organization over $260,000 for failing to report its expenses for an ad that did exactly that. And now, candidates that the Commissioner alleges have benefitted from such ads are being sued for accepting illegal corporate contributions and not reporting them. MCD worries that it, and the candidates mentioned in its ads, could be subject to the same fate.
Additionally, MCD is concerned that, if it were investigated because it ran its ads, information regarding its strategies, activities, and associations would be made public by the Commissioner before MCD has even had a fair opportunity to explain and defend itself. Both the complaints filed by citizens and the findings of the Commission are posted on the Commission’s website and made public.
“MCD’s freedom to speak about issues important to Montanans is being chilled,” said MCD President Bill Coate. “This is not a partisan issue, but an American issue. The freedom to speak belongs to every Montanan. Political debate and education should spring from a well-informed population; it should never be controlled by political parties or government officials. The people should not fear their government when engaging in political debate or while educating the population on political issues. As Thomas Jefferson observed, ‘If the government fears the people, there is liberty, if the people fear the government there is tyranny.’ Our government was designed to derive its just powers from the consent of the governed and not the other way around.”
James Bopp, Jr., the lead attorney for MCD, stated “The First Amendment requires laws regulating free speech to be clear and appropriately limited. Vague laws, like Montana’s definitions of ‘expenditure’ and ‘contribution’ that treat groups as political committees regardless of their purpose and priorities causes groups like MCD simply to stop speaking. This robs Montanans of the free discourse they are entitled to and MCD of its right to participate.” Mr. Bopp continued, “And if the government is going to investigate an alleged violation, it must respect the freedom of Montanans to associate and strategize without fear that those associations and strategies will be made public. Confidentiality encourages participation at all levels so that all voices can be heard. These laws are unconstitutional.”
The case is Montanans for Community Development v. Motl, Cause No. 6:14-cv-00055 (D. Mont. 2014). MCD is represented by James Bopp, Jr., Anita Y. Milanovich, and Justin L. McAdam. The Complaint can be found at http://www.jamesmadisoncenter.org/cases/files/mcd-motl/complaint.pdf, and the Preliminary Injunction Memorandum is available at: http://www.jamesmadisoncenter.org/cases/files/mcd-motl/memo-supporting.pdf.
James Bopp, Jr. has a national constitutional law practice with The Bopp Law Firm, PC.