Montana voters have the right to know the source of significant spending for or against candidates and ballot measures. But over-broad disclosure requirements can chill the exercise of First Amendment rights to association and expression. That's why we asked the Commissioner of Political Practices to revise his proposed rules back in September.
We had two concerns with the initial draft. First, we asked the Commissioner to clarify that organizations like ours won't be asked to turnover full membership and donor lists just because we occasionally advocate on ballot measures. As initially drafted, the rules could have allowed the Commissioner to classify some organizations as independent political committees, instead of incidental political committees, even if supporting or opposing ballot measures is just a small part of what the organization does. That distinction between an independent and an incidental committee carries significant consequences: independent committees must disclose all donor and membership information, even for donations completely unrelated to political activity.
Our next concern with the proposed rules was the definition of “electioneering communication.”
Under the initial draft, communications that included the name or likeness of a candidate would have been considered an “electioneering communication” that would require us to report that communication as an expenditure for or against that candidate. That reporting requirement would apply even if the communication made no mention of the election and did not advocate for the election or defeat of the candidate.
It’s not hard to imagine the ACLU sending a postcard to voters within that timeframe that asks them to urge an elected official, who may also happen to be a candidate in the upcoming election, to take action on an issue. Under the initial draft, we would have to report those communications as being in support or opposition to the elected official named. Several of our partners had similar concerns, in which their non-partisan voter guides, urging Montanans to vote, would require reporting because they mention parties or candidate names. Having to report an expense as an expenditure for or against a candidate carries IRS compliance problems as well as undermining our stance as an organization that never supports or opposes a candidate.
After hearing form the public and reading comments like ours, the Commissioner released his revised rules earlier this month. Fortunately, the revised rules address both of our concerns and adopt almost all of the amendments we requested. The troubling definition was rewritten, ensuring that organizations like ours will continue to be classified as an incidental political committee and will have to disclose only contributions intended for political purposes, and not our entire donor list. Also, the electioneering communications section was revised to allow organizations to report advocacy and lobbying communications that mention a candidate without having to classify them as in support or opposition of the particular candidate.
The new rules should be published within a month and will be in effect for the 2016 primary campaign. We are satisfied, and grateful, that the new rules alleviate our concerns. Thank you to Commissioner Motl and his staff for promoting fair and participatory elections while still protecting Montanans’ First Amendment rights to association and free speech.