Montana debates bill to exempt churches from political reporting

By: - March 9, 2021 3:42 pm

Cartoon illustration by John Moore for the Daily Montanan.

The beginnings of legislation that would exempt churches in Montana from reporting political campaign contributions have their roots in a lawsuit nearly 20 years ago.

Senate Bill 162, carried by Sen. David Howard, R-Park City, would allow churches to be exempt from reporting political expenditures. Proponents of the bill say it protects the ability of churches to lobby on issues when faith and politics intersect without fear of running afoul of government interference through political practices laws in Montana.

Meanwhile, opponents of SB162 say the legislation gives churches special treatment, allowing them not to disclose their political activities while other nonprofits and businesses are required to do so by the law.

Similar measures have been passed by the Legislature previously, only to meet the veto stamp of former Gov. Steve Bullock.

Howard framed the bill as protecting the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Sen. David Howard, R-Park City, speaks during the introduction of Senate Bill 162 to exempt churches from reporting political advocacy or support (Montana Public Access Network).

Jamie MacNaughton, counsel for the Commissioner of Political Practices, raised constitutional concerns, saying that if SB162 passes, it may be challenged in court because it grants special privileges to churches that are not given equally to other organizations for the same political speech.

“This could result in federal court actions under the First and Fourteenth Amendments by secular groups which claim they don’t have equal treatment,” MacNaughton said. “Because there are two different rules.”

The basis for the law stems from an East Helena church, Canyon Ferry Road Baptist, which provided photocopies and facilities for an initiative involving same-sex marriage, which at the time was being debated before a federal court ruling allowed it nationwide. Because the church had provided the copies and venue, the Commissioner of Political Practices ruled the church had to file a report for the incidental expenses. A district court in Montana agreed, but the Ninth U.S. Circuit Court of Appeals reversed the decision, saying the suit was petty and burdensome.

Howard told his fellow senators in the State Administration Committee the purpose of the bill was to codify the appeals court decision into state law.

Senate Bill 162 was heard at the Capitol on Feb. 15, and passed the third reading in the Senate 27-23. It now is waiting to be heard in the Montana House.

Jeff Laszloffy, president of the Montana Family Foundation, spoke in favor of the bill, reading part of decision, “small incursions of freedom should be resisted lest they grow bigger.”

He pointed to many legal victories where churches were integral in change, including anti-slavery movements and the Civil Rights struggles in the 1960s.

“They forget that they approved religious intervention in the political process,” Laszloffy said. “They want to enter the political process selectively.”

Former lawmaker Alan Doane, who now works on behalf of Attorney General Austin Knudsen, said the office supports the measure because it would “be awfully hard to defend” the current law.

Chad Hesler, the pastor at the church now, said the law was greater than just not reporting political contributions, it was about fighting “totalitarianism.”

A member of the congregation, David Dellinger, said that when it comes to restricting the government, we must do it with a “big brush.”

“We need to restrict the freedoms of individuals with tweezers — very minutely,” Dellinger said.

But Lauren Caldwell of the Montana Federation of Public Employees said characterizing this as legislation that protects freedom of speech isn’t accurate.

“This is about transparency,” she told the Senate committee. “It doesn’t infringe on freedom of religion, it simply requires reporting, and reporting is critical to transparency and the choices on the ballot.”

Retired Lt. Col. Richard Liebert, who served in the Army and the National Guard, pointed out that he was a member of a Lutheran church, but said he was opposed to the bill for a number of reasons.

“This is a slippery slope,” he said. “What happens when the Rotary Clubs or Boy Scouts want to endorse a candidate? In my church, we already have blue and red factions in an already intense political cycles. I am afraid this will drive people farther into red and blue camps.

“I’ve been on church boards, and it’s divisive already. This activity doesn’t calm the waters. Let’s consider this carefully: How can we have both freedom of religion and freedom of speech without imposing it on anybody?”

Liz Moore, the chief executive officer of the Montana Nonprofit Association, spoke on behalf of her group, which represents more than 600 members in the state, including churches.

She pointed out there were many things nonprofits can do that don’t trip the requirement to report, for example holding meetings or candidate forums.

“We have to stop short of endorsement because tax benefits can be thought of as a subsidy,” Moore said. Churches are tax exempt in many circumstances and enjoy that benefit that other agencies do not, she told the lawmakers.

“Allowing charitable contributors to support candidates would amount to tax-subsidized endorsements, which tears at the separation between church and state,” Moore said.

She also said the tax code had, in part, solved the problem by allowing groups to form 501(c)6 organizations, which are nonprofit advocacy organizations.

“Nothing is there to stop or prohibit a church from doing that and then doing what they want. It’s just that they are not tax-deductible,” Moore said. “You can’t receive the state benefit for tax deductions and political endorsement.”

More than just the tax consequences, Moore argued that it was necessary to keep nonprofit work out of the political arena unless the lines were bright and clear.

“Being nonpartisan is vital to the work of nonprofits,” Moore said. “This includes the churches because nonprofits invite the entire community to problem solve, and it allows us to discuss policy on all sides without the stigma of party labels. There’s another avenue available to us and churches for the other work.”

MacNaughton also said that changes to Montana law have already been made so the situation that happened to Canyon Ferry Road Baptist would not happen today: She said that a 2015 law said that churches and organizations could give as much as $250 in support, for example photocopies, without requiring an incidental report.

Joel Peden (Montana Public Access Network)

Joel Peden, the executive director of the Montana Association of Centers for Independent Living, said he didn’t want the opposition to characterize his testimony against religion, instead of standing up for equal treatment — a cause which he says he’s spent the bulk of his life standing for.

“This is about following the rules, and the rules are there for a reason,” Peden said. “I’ve read the bill and I have followed the testimony, and no one is saying don’t be involved in politics. But if you are, then you should want to follow the same rules as everyone else does.”

He pointed out his organization formed a 501(c)6 organization just so it could lobby.

“We spent money to create it so that we can do it the right way and have a say and still be active in politics,” Peden said. “We did what we’re supposed to do.

“My belief in independent living and civil rights for people with disabilities is probably as deep as my religious beliefs and Christianity. How do we tell the difference? If we didn’t have some guidance, and we have seen the effects of dark money when it’s unfettered, where’s the stop gap in this legislation when you open the door to this?”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.

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