Political committee truth-in-naming law could be repealed

District court judge ruled law unconstitutional last year

By: - February 8, 2021 3:03 pm

The interior of the Montana state capitol in Helena, which was completed in 1899, 10 years after the state was admitted to the union. (Photo by Eric Seidle for the Daily Montanan.)

A House panel is voting this week on legislation to remove state law requiring that political committees name themselves in a way that “clearly identifies the economic or other special interest” or common employer of a majority of the committee’s contributors.

The bill’s sponsor, Rep. Brandon Ler, R-Savage, and its supporters say that it’s necessary to repeal that section of code following a court decision that rendered the law essentially unenforceable — though the move has some worried about an erosion of political transparency.

Montana’s committee naming law requires consistency between a political action committee’s name and its membership, an attempt at preventing outside groups spending in local elections from misrepresenting their intent.

The Montana Commissioner of Political Practices has sought to enforce the law on a number of occasions, most recently in the last election cycle, when former lawmaker Joel Krautter filed a complaint with the office against Doctors for a Healthy Montana, a political action committee that formed to support primary challengers to Republican legislators who voted for Medicaid expansion renewal in the 2019 session.

As it turned out, at least for a time, most of the donors to Doctors for a Healthy Montana were in fact legislators, not medical doctors, an apparent violation of the committee naming statute. Jeff Mangan, the state commissioner of political practices, agreed, but the committee appealed, arguing that the law was unconstitutional.

In August of 2020, a U.S. District Court judge agreed with Doctors for a Healthy Montana, finding that the law did not serve the state’s narrow interest in regulating political speech, that it was difficult to enforce and duplicative of other state laws requiring PACs to name their contributors, identify their employers, occupations and so on.

Mangan’s office could have appealed, he said, but decided not to. In fact, Mangan had been lobbying the Legislature to get rid of the law before the court even took up the matter.

“It was the most difficult part of our campaign finance language for my office to enforce, and it caused a lot of confusion and problems,” Mangan said in testimony before the House State Administration Committee last week. “If a majority of contributors fall into one group, the name has to recognize that fact. If you start a committee, and you have three carpenters and one mechanic, and it’s ‘Carpenters for a Better Montana,’ in three weeks, if you have ten more donors, and they’re mechanics, you have a naming issue.”

An attempt to repeal the law in 2019, HB308, stalled before a final vote in the House. And that was before the law was deemed unconstitutional. Now, even if he wanted the committee naming statute to stick around, Mangan said the court’s ruling precludes him from enforcing it anyway.

The prospect of repealing a whole section of seemingly well-intentioned code enacted by a unanimous vote in the 1980s spooked opponents of Ler’s bill. In committee last Friday, they spoke with pride about the state’s strict political sunshine laws and warned of the infusion of money in politics in the post-Citizens’ United world.

“The integrity of our elections depends upon transparency; one aspect of transparency is allowing the voters to see who is behind political advocacy,” said Margaret Bentwood with the League of Women Voters of Montana. “It’s not friendly to the consumers of political advertising.”

Plus, even if other laws require disclosure by political donors, it’s not quite the same as requiring accuracy and truth in the name of a committee itself, especially for those who don’t have the time or sophistication to navigate the state’s campaign finance filings online.

“I do think it’ll be easier to deceive voters when they don’t know who’s financing these mailers, or if they’re frightened by what they’re reading, and don’t have time to do the research,” said Mary Catherine Dunphy, a Miles City resident who testified against the bill last week.

Mangan, a former Democratic state legislator, said he understands these concerns, but that at the end of the day, he couldn’t enforce the law if he wanted to. Plus, he said, echoing the court ruling, there’s other statute that serves a similar purpose to a greater effect.

“This does not affect any transparency as far as the contributors to a political committee,” he said.

And if a committee chooses to misrepresent its membership, that’s for a rival political entity to point out.

“It is true that a number of people could come together and call themselves something that they may not be, but the court would tell us that is political speech, and the answer to political speech is political speech by the opposition,” Mangan said.

Some lawmakers on the committee discussed the possibility of drafting similar law that doesn’t have the same constitutional issues, something Mangan declined to weigh in on, saying he would leave that up to the Legislature. Rep. Wendy McKamey, R-Ulm, who chairs the State Administration Committee, said she sees a place and a need for such law, but that it can’t come in the form of a fix to the existing statute — the court ruling means the whole thing needs to be trashed.

House Speaker Pro Tempore Casey Knudsen said Monday that he was not aware of any efforts this session to replace the statute.

The State Administration Committee can vote on the repeal bill as soon as February 9.

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Arren Kimbel-Sannit
Arren Kimbel-Sannit

Arren Kimbel-Sannit is an Arizona-bred journalist who has covered politics, policy and power building at every level of government. Before getting his dose of northern exposure, Arren worked as a reporter in all manner of Arizona newsrooms, for the Dallas Morning News and for POLITICO in Washington, D.C. He has a special interest in how land-use decisions affect working-class people, which he displayed through reporting on the epidemic of pedestrian deaths in the U.S. for the Los Angeles Times and PBS Newshour. He's also covered housing, agriculture, the Trump presidency and more.