9th Circuit rules Montana’s political laws too vague to be enforceable

Case centered on two men who ran ‘Legistats’ site and spoke to conservative groups

By: - July 7, 2022 4:28 pm

A screenshot of the “Legistats Loyalty” websites, which track how Republicans vote on key issues in the Montana Legislature (Screengrab).

The U.S. Ninth Circuit Court of Appeals has sided with two conservative Montana residents who the state’s Commissioner of Political Practices had made register as a political group because of the law’s vague language regarding the definition of a political committee.

At issue was former Montana lawmaker Ed Butcher and Lonny Bergstrom, who maintain a website, “Legistats,” which tracks how well Republicans in the state Legislature voted with the party on bills generally considered partisan.

While running the site, the two got requests from various Republican and conservative groups to speak. They traveled, often eating at fast-food restaurants, and using their own gas money to visit the state, one time staying at a Glendive motel. According to court records, they never received compensation for their time nor were they reimbursed for their expenses.

Jeff Mangan, Montana’s Commissioner of Political Practices, ruled their activities triggered state law, which required them to file reports and disclose that they were a political committee because they had spent more than $250 engaged in the political process.

However, the Ninth Circuit overturned federal district Judge Dana Christensen’s ruling that Montana’s political practice rules did not violate Butcher and Bergstrom’s political free speech. Instead, a panel of judges wrote that Montana’s rules were impermissibly vague and therefore likely unconstitutional. The panel voted 2-to-1 in the split decision.

It is the second time this year that attorney Matthew Monforton, who represented Butcher and Bergstrom, took home a successful ruling against the COPP. Previously, federal district Judge Donald Molloy said another part of Montana’s political practices rules were likely unconstitutional as well since they deal with political expression, which is often given the most freedom from courts.

The recent ruling itself focused on the conflicting portions of law that said de minimus items such as incidental food or some gas for travel don’t constitute significant value to the political process and therefore don’t need to be reported. However, state law also requires any amount greater than $250 to be reported, including a cumulative total, even if the individual items were of small value.

“(Butcher and Bergstrom) point out that gas, which is specifically listed as an exempted volunteer expense, is what they mostly spent their money on,” the court said. “In their view, they had no reasonable way of knowing that their expenses would not be exempt from Montana’s registration and reporting requirements.”

The appeals court said that the vagueness of the law left citizens open to prosecution without being able to reasonably know when they’re running contrary to the statute.

“The state’s suggestion that Montana’s reporting scheme intends to exclude ‘casual political acts’ is of even greater concern from a due process perspective,” the court wrote. “Butcher and Bergstrom had no reasonable way to know that when they drove around Montana and bought meals at McDonald’s and stayed at the La Quinta Inn, they were not being ‘casual’ enough.”

At one point, the judges asked if a husband and wife, traveling around in a car for vote canvassing, would meet the definition of a political group and forced to register as a political committee.

“And Montana’s answer, remarkably, was yes,” the decision said.

“There is just no reason the state needs to regulate political advocacy,” said Monforton, a former state lawmaker and the attorney for Butcher and Bergstrom. “This was not big dark money coming in from out of state.”

Mangan told the Daily Montanan that the Attorney General’s Office, which represented the commissioner’s office, was reviewing the ruling next week so it would be too early to say what the next steps are, or how this ruling may change how the laws are interpreted by his office.

Monforton said the two victories are a clear message that Montana’s political speech laws step on the First Amendment.

“This needs to stop now, or they’re going to have to keep writing me checks,” Monforton said. “The commissioner of political practices is a way to control grassroots small groups when they speak truth to power. It’s a tool for the powerful liberal establishment in Helena.

“The COPP should be abolished, but unfortunately, it’s unlikely the Republicans will do that when the governor makes an appointment. They’ll turn around and weaponize it for their benefit now, like the Democrats. And I’d be happy to have them prove me wrong, though.”

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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. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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