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New campaign finance law praised, but some say it needs to be toughened

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HELENA — National authorities are praising Montana’s new campaign finance law as a vast improvement over the state’s former law, but they say it still needs toughening up to end anonymous “dark money” spent by groups known as incidental committees.

Campaign finance law experts at the Campaign Legal Center and National Institute on Montana in State Politics each were pleased that Montana passed the stronger law. Both expressed concern that it doesn’t require incidental committees to report their donors.

“My overall view is it’s a pretty good bill that definitely will improve disclosure in Montana,” said Paul Ryan, senior legal counsel for the Campaign Legal Center, a nonpartisan, nonprofit Washington, D.C., group. “Is it the toughest in the nation? No, I wouldn’t characterize it as that.”

Ryan, a University of Montana graduate, added: “I’d put Montana definitely in the top tier with disclosure. All in all, the state Legislature and the governor are to be commended. This is a great step forward for Montana voters to have more disclosure in elections.”

The Campaign Legal Center attorney said he’s hoping the law can be strengthened to require donors to incidental committees to be disclosed.

These are groups involved in Montana elections, for example, but which do not have elections as their primary purpose, Ryan said. They’re known as “non-major purpose groups.”

“It is a very good bill, “ said Denise Roth Barber, managing director for the National Institute on Money in State Politics, a nonpartisan, nonprofit group based in Helena. “It advances Montana disclosure greatly from where it has been before. ...

“We stop short of saying it ends dark money because it doesn’t do that. It doesn’t quite end dark money. It won’t yet disclose the donors (to incidental committees), but we’ll get there as a state.”

Yet state Political Practices Commissioner Jonathan Motl, who will be enforcing the new law, sees no problem.

“It is the strongest state law that I know of,” Motl said. “It’s the strongest state law because it was enacted in Montana, and Montana has something going for it that other states don’t. What Montana has going for it is an extremely interested citizenry.

“The regulator doesn’t have to go out and see if anything inappropriate is going on. People will call. There are a lot of eyes out there that are going to see the violations.”

The Legislature, in bipartisan votes, passed Senate Bill 289 by Sen. Duane Ankney, R-Colstrip, and Democratic Gov. Steve Bullock signed it into law on April 22. They teamed up on what Bullock called the Montana Disclosure Act.

The League of Women Voters of Montana, Montana Public Interest Research Group, Common Cause, and the National Institute on Money in State Politics supported the bill and called for stricter disclosure laws.

Supporters pointed to the surge in anonymous “dark money” spending since 2008 to attack Montana legislative and statewide candidates from both major political parties.

The bill drew opposition from the Montana Family Foundation, Montana Policy Institute and Montana Libertarian Party. Their spokesmen called the bill overly broad and vague and suggested they file a lawsuit challenging it unless it was amended. The bill passed without the changes they sought.

Testifying for the bill in committee, the National Institute’s Barber endorsed the measure for clearly defining electioneering communications and requiring them to be disclosed.

“So it brings Montana on par with all those other states that require that,” Barber said in an interview.

She added, “If you mention a candidate but you don’t say ‘vote for or vote against,’ you just say in the upcoming 2016 election, 'Gov. Bullock did something bad, call and tell him that he did something bad,’ those are electioneering communications that are run during the election system, but they don’t tell the voter to vote for or against someone.”

Both Ryan and Barber separately said they support requiring incidental committees to disclose their donors.

“When talking about 501(c)(4) social welfare groups or (c)(6) business groups, what kind of disclosure do these non-major purpose groups have?” Ryan said. “Do they have to disclose where they got their money to make an ad buy, or that they made an ad buy?”

The new law requires them to report their ad buys, which is new information for Montana voters, Ryan said.

“Do they have to say where they got their money?” he asked. “Or will it be a report by an innocuous-sounding group saying we spent $200,000 on a radio buy? Some states require that.”

Ryan went on to say, “There is a big wild card here, which is the rule-making process, which has the potential to strengthen an already-good law.”

Over the next couple of months, Motl will be proposing rules to implement the new law. These will be subject to a public hearing before he adopts the rules.

Ryan said he hopes Motl can flush out in greater detail, through rules, what the statute itself covers regarding the disclosure provisions for incidental committees.

California passed a law last spring to require these “non-major purpose groups” to disclose where their money came from, Ryan said, while Maryland also has in place “a good donor disclosure law.”

Barber agreed.

“It doesn’t yet get at the donors,” she said, referring to incidental donors. “The politics is not ready for it. We’re (the state) isn’t ready for that here yet, nor is the rest of the country.”

Motl doesn’t see a problem with incidental committees.

“If they’re incidental, they don’t have to disclose contributors because the incidental committee is the contributor,” the political practices commissioner said. “The real issue is, is that really an incidental committee or is it a fake incidental committee serving as a conduit for somebody else’s money? That’s what we’ll be looking at in our regulations.

“If it’s a true incidental committee, it’s not a problem. Everyone knows who the contributor is. It’s a corporation."

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