HELENA – Those testifying before an interim legislative committee Monday offered widely divergent opinions about the role of the state political practices commissioner and how the office should be structured.
The Legislature’s State Administration and Veterans Affairs Committee is studying the office and looking at how other states regulate campaign finances, ethics, lobbyists and disclosures. Any recommendations will go to the 2015 Legislature for consideration.
Legislative researcher Sheri Scurr said Montana is the only state that vests one appointed official – the political practices commissioner – with administrative authority over campaign, ethics and lobbying laws.
Political Practices Commissioner Jonathan Motl, who took office in June, summarized his responsibility as making sure that “fair play” exists in Montana elections.
Motl said “fair play” in campaigns requires candidates and political committees to disclose their donations and report them along with their campaign expenses, and attribute who is paying for campaign advertising, fliers and other materials.
“Democracy, like any family, runs with rules,” Motl said. “The rules are there.”
Motl said new candidates must file forms certifying they understand “fair play” rules exist and pledge to file reports disclosing their campaign contributions and expenditures.
If someone files a complaint against a political candidate or a committee, the commissioner’s office must look into the allegations if it clears an initial hurdle, he said. After that, the office must investigate the complaints and issue a decision. If it finds evidence of a violation of state law, the commissioner must refer the matter to a county attorney, he said. Most county attorneys refuse to prosecute.
“The commissioner can adjudicate (in court) or negotiate a settlement,” Motl said.
James Brown, a Helena attorney who has represented the American Tradition Partnership, Montana Right to Work and some individuals in cases, called for overhauling the office and placing an appointed commission to oversee the commissioner.
“The commissioner said his role as commissioner is to be a check on the candidates,” Brown said. “From the candidates’ and the public’s side, who’s the check on the commissioner? What’s problematic is you have one person who is basically the fact-finder, the decider and the prosecutor. There is absolutely no due process check.”
Having a commission would prevent a “self-interested commissioner” from filing litigation, Brown said. He talked about what happens when the commissioner releases findings that sufficient evidence exists of a violation of the law.
“Of course he’s going to file litigation,” he said. “There’s a big splashy story in the paper. There’s no finding by a court of law. You are guilty before you are ever found guilty.”
Last week, Motl ruled that one of Brown’s clients, former Rep. Dan Kennedy, R-Laurel, had accepted illegal donations from a prominent “dark money” group and similar groups and failed to report them in a 2010 primary. He ruled in a complaint filed by Debra Bonogofsky, a Billings businesswoman who lost to Kennedy in the House District 57 Republican primary.
Motl also found Western Tradition Partnership, now American Tradition Partnership, and similar groups had broken the law by coordinating mailers that either promoted or attacked candidates in the race.
Another speaker, Senate President Jeff Essmann, R-Billings, disputed Motl’s “fair play” interpretation.
He cited the 1976 U.S. Supreme Court decision, Buckley v. Valeo, which, among other things, struck down limits on campaign spending and restrictions on how much personal money candidates can donate to their campaigns. Fair play was not part of that ruling, he said.
“The only basis on which the court found campaign finance regulation could occur was based on corruption,” Essmann said.
Motl said he agrees the notion of fair play is built around the appearance of corruption.
The new commissioner said he has streamlined some processes and hopes to be caught up with decisions on complaints by early next year, except for those whose outcome depends on a U.S. Supreme Court ruling.