HELENA - A battle in the Montana Supreme Court over a century-old ban on corporate political spending could determine the fate of some third-party attack ads in the 2012 elections.
A conservative group called Western Tradition Partnership - which does not file campaign finance reports - has riled Democrats and even some Republicans with its hard-hitting attack mailers. The ads generally slam Republicans in primaries that the group considers too moderate or liberal, and then take aim at Democrats in the general election.
Western Tradition Partnership, which once had roots in Montana but now calls Washington D.C. home, continues to be active in Montana issues even though the name has been changed on its website to American Tradition Partnership. Legal documents continue to be filed under the original name.
Montana's high court has scheduled oral arguments for September in Western Tradition Partnership's so far successful effort to undo Montana's 1912 Corrupt Practices Act. The group challenged the act last year in wake of the high-profile U.S. Supreme Court case known as "Citizens United" that threw out parts of an old federal law prohibiting corporations and unions from paying to air ads for or against political candidates.
The group argues that a ban on corporate political "speech" is unconstitutional.
At the same time, the group has become entangled with state authorities for failing to file campaign finance reports. Although the group agrees that requiring disclosure of donors and spending is constitutional, it argues its education brochures do not meet the definition of "electioneering."
Whatever the Supreme Court decides in the case could impact many big state elections next year. The state laws in question regulate races from the governor on down to the Legislature and even into local city races. Federal races for Congress abide by different regulations.
State campaign finance authorities have made it clear they see the unregulated spending by WTP, and potentially many others like it, as a very big - and growing - issue. A state investigation into WTP found it solicited foreign money to spend sending mailers to Montana voters.
Regulators at the commissioner of political practices point to the attack mailers as obvious attempts to influence elections. Past examples have been commonplace in legislative races.
The pieces often resemble one another, just with different candidate names. One read "can we afford any more politicians who refuse to come clean on taxes and spending?" while another declares a candidate "the radical environmentalists' puppet politician."
A political opponent to WTP calls it "laughable" that the conservative group would try to argue its mailers are not intended to influence elections. Theresa Keaveny, executive director of the Montana Conservation Voters that generally favors Democrats, said some of the mailers were received by voters the day before elections - making it clear they were not policy mailers encouraging voters to communicate with candidates.
"It is clearly intended to encourage people to vote for or against candidates," she said. "They want to exempt themselves from the transparency that other organizations like ours adhere to, and we are wondering what they have to hide."
But the Supreme Court decision could have a bigger impact for larger, mainstream corporations that must now restrict political spending to their political action committees that people can voluntarily contribute to. Those donations, and the spending, must be reported to the state.
If the district court decision to toss the ban on corporate spending is upheld by the Montana Supreme Court then corporations would be able to spend directly out of their general treasuries.
"I don't want my utility bills or grocery bills to result in profits that corporations can use in elections," Keaveny argues.
Even though disclosure on that political spending would be required by the state, Keaveny points out that the group leading the effort to undo the ban is not disclosing any of its donations spending even though the state says it must.
"Without accountability and reporting the playing field will not be leveled and it will change who controls government in Montana and I worry we will be going back to the days of the collar copper," a reference to a time when mining giants famously dominated state elections.
WTP sees it differently.
It argues many small corporations, including a painting company included as an ally in their legal challenge, should be allowed to speak as they see fit. WTP spokesman Donny Ferguson said that the group's activities could be hampered if the Supreme Court reverses the lower court decision, and that it could be subjected to more regulatory review.
"We would obviously be very worried about what we can do or what we can say without spending thousands of dollars defending against baseless charges," he said. "We just want to continue to promote good policy without harassment by extremists."
While the Montana Democratic Party feels the attack mailers last election cycle played a large role in a tea party-drive GOP sweep of House races that led to such legislative proposals as attempts to nullify federal laws.
"A very extreme Legislature was elected under very suspicious circumstances and it is very important we take strong steps to improve the transparency of the election process," said party spokesman Chris Saeger.
The GOP is more receptive to WTP's efforts.
"Although the state party hasn't actually taken a position on this specific lawsuit, Republicans have always believed that freedom of speech means freedom of speech, even when the speaker isn't popular," said party spokesman Bowen Greenwood.