Gavel in front of legal person writing. (Provided by Ekaterina Bolovtsova via Pexels.com for the Daily Montanan)
The Montana Clean Campaign Act doesn’t pass constitutional muster, according to an order Tuesday from U.S. District Court Judge Donald Molloy.
The Fair Notice provision in state law requires political committees to “contemporaneously provide a candidate with a copy of any campaign advertisement published within 10 days of an election if that advertisement refers to, but does not endorse, the candidate,” the order said.
In their complaint, plaintiffs Montana Citizens for Right to Work, an incidental political committee, argued the provision violated the First Amendment because it is a “content-based restriction that is not viewpoint neutral.” The plaintiffs said the provision failed to meet “the requirements of strict scrutiny” for limiting free speech.
The order noted the Fair Notice provision, which requires the disclosure, cannot be separated from the overall act, and it granted summary judgement to Montana Citizens for Right to Work and declared the act unconstitutional.
In the complaint, the plaintiffs had sued Commissioner of Political Practices Jeffrey Mangan for enforcing the law. The state had argued the law actually allowed more information to reach the public, and therefore protected the First Amendment, and it also gave candidates the opportunity to respond.
“On this record, the state has failed to show that Montana’s Fair Notice provision is narrowly tailored to achieve a compelling state interest,” the judge wrote. “Many would agree that while Montana’s desire to promote discourse in response to negative campaign advertisements is laudable, the First Amendment cannot be so easily overcome. ‘To the contrary, the First Amendment requires that politicians ‘tolerate insulting, even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.””
Quoting another case, the order also said that “while the court might agree that negative campaigning is distasteful, that is not a sufficient basis for interfering with core First Amendment rights.”
The dispute involves a mailer Montana Citizens sent to some 16,000 voters in 20 different legislative districts before the November 2020 election, the order said. The order said the mailer included surveys and related information, but it did not include direct endorsements.
However, Trent Bolger of the Montana Democratic Party filed a complaint with the Commissioner of Political Practices alleging the Montana Citizens for the Right to Work violated the Fair Notice provision of the law in failing to notify candidates identified in the mailers. Mangan upheld Bolger’s complaint, and Montana Citizens agreed they did not provide notice to candidates.
“Mangan offered to settle the controversy if Montana Citizens agreed to pay a $8,000 fine,” the order said. “No deal. Instead, Montana Citizens filed a verified complaint.”
The order said that under the Fair Notice provision, endorsements are treated differently than non-endorsements. The judge noted the statute requires the speaker to “provide a copy of the particular campaign advertisement to any candidates individually mentioned therein ‘except candidates mentioned in the context of endorsements.’”
The state argued that courts recognize the importance of providing the electorate with information and “combatting corruption,” the judge said. However, the order noted it isn’t clear that those interests rise to the level of “compelling,” and regardless, the commisioner’s office didn’t present evidence that shows the disclosure of negative advertisements “combats corruption.”
The order also notes the disclosure applies only in the last 10 days of an election, but the defendant offered no evidence supporting a rationale for why that timeframe “may have unique impacts.” The omission “is particularly problematic under Montana law as absentee ballots are mailed to voters 25 days before an election,” and more people are voting before Election Day.
The order also notes that the provision requires disclosure to candidates, but not more information to the electorate. It said that while the disclosure might result in more information to the public, “the law itself mandates no such thing. To the contrary, enforcing 13-35-402 has the potential to ‘chill’ campaign speech in the final days of an election.”
The judge also said the law violates the Equal Protection Clause “in the absence of any argument or evidence as to how a compelling state interest is served in treating political action committees espousing different messages incongruously.”
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