Issue-Advocacy Group Asks Supreme Court to Review Sweeping Montana Political-Committee Law

Posted by James Madison CenterSep 20, 20180 Comments

Thursday September 20, 2018

Contact: James Bopp, Jr.

Phone 812-232-2434; Fax 812-235-3685; [email protected]

 Issue-Advocacy Group Asks Supreme Court to Review Sweeping

Montana Political-Committee Law

Today, Montanans for Community Development (“MCD”) asked the U.S. Supreme Court to review Montana's political-committee (“PAC”) law, which subjects groups like MCD to onerous entity-based administrative and organizational requirements for spending as little as $251 on political speech. MCD also asked the Court to review the federal appellate-court practice of choosing which cases are binding in future cases (“precedent”) and which are not. The Ninth Circuit refused to treat MCD's decision as binding on anyone but MCD.

            MCD is a small, nonprofit, association that promotes economic development in Montana. It wants to circulate ads promoting energy development and Montana jobs. But since some ads would mention candidates, Montana would force MCD to be a PAC. And since PAC-status brings onerous administrative and organizational burdens, MCD is not running its ads.

            Instead, MCD challenged Montana's PAC-status scheme because the First Amendment requires that only groups whose major purpose is the nomination or election of a candidate can be forced to be a PAC. If a group does not meet the major purpose test, it is constitutional to require the group to file an activity-based one-time event-driven report on its political speech. Instead, Montana requires the group to become a PAC, if it spends just $251 on political speech.

            By contrast, federal campaign finance law recognizes the major purpose test. So if MCD ran a similar ad merely mentioning a federal (instead of a state) candidate, MCD would simply file an activity-based one-time event-driven report about the ad. It would not be forced to register as a PAC and bear onerous PAC administrative and organizational burdens. But Montana insists that groups running ads mentioning state candidates must become PACs, rather than just filing a activity-based report about the ad itself.

            Montana imposes numerous entity-based administrative and organizational burdens on groups it deems as PACs. The PAC must choose a name that is permissible to Montana authorities under rules requiring that the name clearly reflect the group's purpose. If the name is disapproved, the group can't speak until it chooses a new name. The group must find someone registered to vote in Montana who will agree to be the group's treasurer. That is difficult because treasurers have huge burdens in keeping track of all sorts of details beyond just the price of an ad, and can be liable for errors and omissions. The group must open a Montana bank account, separate from any other account, and all PAC activity must be done through that account. The group must file periodic reports, even when there is no activity, disclosing information far beyond the direct expenses of the ad at issue. And to escape all these burdens, the group must file a termination report, which means it can't speak again about a candidate in that way until it becomes a PAC all over again. That chills speech.

            In Buckley v. Valeo (1976), the U.S. Supreme Court said that those PAC-style administrative and organizational burdens can only be imposed on groups whose major purpose is nominating or electing candidates. That's not MCD's purpose. So it couldn't be forced to be a federal PAC because of the major-purpose test. The same should be true for Montana PAC-status, but neither Montana nor the Ninth Circuit believe they are bound by the Supreme Court's major-purpose test, designed to keep speech from being chilled by such administrative and organizational burdens. So MCD wants the Supreme Court to decide that the First Amendment and the major-purpose test govern Montana.

            James Bopp, Jr., lead attorney for MCD, comments: “The U.S. Supreme Court says that PAC-status and attendant entity-based administrative and organizational burdens can only be imposed on groups whose major purpose is nominating or electing candidates. That's to protect people from refusing to speak about candidates because the burdens just aren't worth it. Though the Supreme Court says the First Amendment requires such protection, Montana doesn't think it applies to them. We want the Supreme Court to tell Montana that the First Amendment protects speech from being chilled by onerous burdens there just like every where else.”

            “MCD's constitutional harm is made worse,” Bopp adds, “with the Ninth Circuit's refusal to make its decision binding precedent. The Ninth Circuit has made private law, applicable only to MCD, that the court never has to follow in another case, particularly one involving a political opponent. This denies MCD equal protection under the law. If federal courts are allowed to issue nonprecedential decisions, they can rule based on their personal preferences or bias while protecting those they like in the future from such decisions. The Supreme Court needs to stop this practice.”

            The case is Montanans for Community Development v. Mangan. MCD's petition for certiorari can be found here.

James Bopp, Jr. has a national constitutional law practice with The Bopp Law Firm, PC.


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