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Changes afoot to tighten campaign finance reporting laws in Montana

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The first-time registration of a Missoula law firm as a political action committee appears to indicate a shift in the political landscape since the U.S. Supreme Court's controversial ruling in Citizens United v. Federal Election Commission.

The high court's decision five years ago this month found independent expenditures by corporations are protected under the First Amendment, and it struck down a ban on those contributions.

The Supreme Court subsequently found Montana's ban on independent spending by corporations to be unconstitutional.

Now, changes are afoot to tighten remaining campaign finance regulations in Montana, and Commissioner of Political Practices Jonathan Motl has been active in enforcing existing ones.

"What we have left in Montana is reporting and disclosure," Motl said.

Reporting, though, still has limitations.

To some extent, campaign finance law enforcers are playing "whack-a-mole," said Anthony Johnstone, the lawyer who argued to the Supreme Court that Montana's ban on corporate political money should stand.

"In general, the rules of campaign finance have not kept up with the political realities after Citizens United," said Johnstone, who teaches at the University of Montana School of Law.


In the most recent election cycle, Motl called on the Datsopoulos, MacDonald and Lind law firm to register as a political committee and report its expenses. Collectively, the firm's lawyers pooled $12,060.75 to put toward local and statewide races, according to their campaign finance report.

The firm's donations made up relatively small percentages of local candidates' coffers, roughly 5 percent at the most. This month, all the local candidates the firm supported took oaths of office, including a justice of the peace, sheriff and county attorney.

Motl agreed the potential exists for money to compromise justice, but he said the solution is in timely reporting and disclosure.

He also said local citizens and groups must step up their involvement at home as outside money comes into play in local politics. In this regard, he lauded the civic engagement of the Datsopoulos lawyers, who have deep roots in the community.

"We're witnessing the necessity of changing political involvement, I think," Motl said last week. "And Datsopoulos, MacDonald and Lind are probably moving ahead of the pack."

The changing political involvement is also front and center this week at the Montana Legislature. There, Motl and some legislators are working to shore up limitations on campaign reporting.

Together, two proposed bills would ensure voters are better able to see the money that's influencing candidates, the commissioner said. Both are scheduled to be heard this week (see related story).

Currently, reporting deadlines come due after many people already have mailed their ballots. House Bill 131, sponsored by Rep. Ellie Hill, D-Missoula, would add two reporting periods to the campaign season, requiring "candidates and committees to file reports at the start of an absentee voting period."

Senate Bill 86, sponsored by Sen. J.P. Pomnichowski, D-Helena, would make those reports instantly available. The act would require "candidates and political committees to file reports electronically."

"Put those bills together and ... the press and the public have instant access to how much was spent," Motl said.

In the case of political committees, the public will know the source of the money, how much was spent, and on whom, he said. That way, expenditures and attacks become part of the public discussion.


Passing those bills isn't a given, though, and other practices remain difficult to monitor.

If a law firm or other political committee decides to act on its own, rather than with a candidate, it can spend as much money as it wants, Johnstone said.

Those "independent expenditures" are unlimited, and that creates problems for the public, he said.

First, he said, it's hard for the public to tell the difference between, say, ads and billboards placed by candidates and those paid for by groups with unlimited money.

Second, it's tough to monitor whether a committee spending unlimited money is actually acting independently of a candidate, Johnstone said.

In the Commissioner of Political Practices Office, Mary Baker, program supervisor, agreed: "It is difficult to tell from the public's perspective. It's difficult to prove."

Motl's 2014 discussion in his ruling on a complaint alleging illegal coordination shows the barriers to proving it. The complaint alleged a committee called Montanans for Veracity, Diversity and Work had illegally coordinated with Kirsten Pabst, then candidate for county attorney.

The commissioner dismissed the complaint against Pabst, who took office this month. He found the committee headed by David Paoli and J. Michael Barrett violated other campaign practice laws.

In the discussion about coordination, Motl states an investigation must find specific evidence, such as notes, phone conversations or other documents, that show the parties worked together. According to the ruling, "crossover" involvement isn't adequate.

In his report, the commissioner cites previous allegations of coordination his office dismissed "despite extensive crossover" by parties – who even rode in a parade together.

In the complaint against Pabst and the committee, he notes Pabst leased space from "an entity owned by Paoli." Plus, he wrote, the two co-counseled for the defense in "the high-profile (2013) rape trial of a University of Montana football player," who was acquitted.

But law firms "regularly join together" in Montana, and cooperation does not, "by itself," create coordination, he said. Both an advertiser and a strategist he interviewed said Paoli instructed them to avoid contact with Pabst.

Also, Paoli and Pabst both "expressly and completely denied any coordination," the ruling states.

"The commissioner accepts those denials as good faith, but notes that he received comparable denials of coordination" in some past cases where he found it existed.


The sums of money being spent in small-town campaigns by big outside players is problematic because locals can't compete, Johnstone said.

"Take a county that's considering a fracking regulation, a land-use zoning change," Johnstone said. "That decision might well be worth a million dollars to an out-of-state corporation.

"And they would not hesitate – in some cases, have not hesitated – to drop a million dollars into a local race that might otherwise involve only a few thousand dollars of campaign spending."

He said one notable target is the justice system because decisions are made by one prosecutor or judge as opposed to 26 or 51 legislators.

"It's a particular concern ... in the justice system, where we expect our prosecutors and our judges, especially our judges, to rule impartially, notwithstanding the tens and hundreds of thousands of dollars – and at some point in Montana, probably millions of dollars – spent on these elections," Johnstone said.

An expenditure made independent of a candidate has no cap. By the troubling logic of Citizens United, though, the only reason people have to worry about money in politics is when it is a direct contribution to the candidate, he said.

"Because you are independent, they do not owe you a debt of gratitude for the campaign contribution, even though that independent expenditure can be ... decisive to winning the election," Johnstone said of the rationale in the Supreme Court's decision.

In Montana, he suggested publicly financed campaigns as a possible solution. He estimated it would cost $10 million to $20 million, a lot from one special interest group, but relatively little compared to the total state budget.

"It's a small price to pay for peace of mind that it is our money, our being the citizens' money," not the money of an outside interest group, he said.

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Related to this story

Jon Krakauer has "no doubt" rape victims in Missoula will be served poorly with Kirsten Pabst as the Missoula County attorney. On Tuesday, Doubleday will release the bestselling author's book called "Missoula: Rape and the Justice System in a College Town." In the book, women tell stories of being raped by acquaintances and failed by the justice system in cases from 2010 to 2012.

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