By Stuart McPhail
November 4, 2016

Montana voters won an important victory for campaign finance transparency on Monday when a federal district court upheld the state’s disclosure laws against a challenge brought by a dark money group. The decision will help ensure voters know who is behind so-called “issue ads,” campaign ads which are dressed up as statements about policies or legislation in an attempt to evade disclosure.

The group bringing the challenge, dubbed “Montanans for Community Development” (“MCD”), sought to distribute mailers close to the 2014 election touting one candidate’s “pro-growth policies,” while criticizing another candidate as “fighting this progress at every turn.” The mailers did not otherwise expressly ask the reader to vote for or against the candidate, however.

Even without those express terms, because the mailers would be distributed close to the election and clearly identify candidates, they would qualify as “electioneering communications” under state law. Distributing the mailers would therefore require MCD to register as a political committee under state law and report its contributors. The group, however, wanted to ensure voters would have no idea who the individuals behind the mailers were, and so challenged the law.

In upholding the state law, Chief Judge Dana L. Christensen found that it served important interests in “provid[ing] the electorate with information as to where campaign money comes from” and “help[ed] ensure that voters have the facts they need to evaluate the various messages competing for their attention.” Rejecting the group’s arguments that disclosure was at odds with the First Amendment, the judge found “providing information to the electorate is vital to the functioning of the marketplace of ideas, and thus to advancing the democratic objectives underlying the First Amendment.”

Weighed against these important interests were the minimal burdens imposed by the law on political committees, which Chief Judge Christensen found to be less than voters incur in filling out federal or state personal income tax returns. Further, the judge upheld the timely reporting of contributions as they are received, finding that “[i]t is common sense that in order to inform the electorate about a committee’s spending or receipt of funds before an election, these events must be reported on a continual and timely basis.” Chief Judge Christensen also rejected the group’s argument that it could not be regulated on the basis of its distributing a few mailers which did not expressly ask voters to vote for or against the named candidates.

Importantly, the court squarely rejected even the relevancy of the group’s attempt to cast its mailers as non-electoral “issue” advocacy, holding that, “even if the Court takes MCD at its word that it intends to pursue only issue advocacy, regulation of issue advocacy is permitted if justified by a compelling state interest” like ensuring an informed electorate. Dark money groups often attempt to cast their campaign ads as “issue” ads to evade campaign disclosure, arguing that the ads are solely intended to persuade voters to favor a policy like tax cuts or environmental regulation even when the ads also mention a candidate who will soon appear on the ballot.

These “issue” ads, however, rarely bother to try to persuade voters outside of competitive districts or air after the election is complete. Nonetheless, dark money groups like MCD have argued that the First Amendment grants complete anonymity to these “issue” ads regardless of whatever interest voters might have in their transparency. Chief Judge Christensen’s ruling helpfully cuts that argument short.

The win before Chief Judge Christensen marks the second such recent victory upholding disclosure rules as applied to organizations that do not limit their campaign ads to so-called express advocacy ads. In September, CREW won an important victory in the United States District Court for the District of Columbia reversing the decision by the three Republican commissioners on the Federal Election Commission to limit application of the federal political committee rules to only those groups that spent a majority of their funds over their lifetimes on express advocacy.

In CREW’s case, the Republican commissioners had rejected consideration of two groups’ electioneering communications—which as defined under federal law are similar to the “issue” ads that were the subject of the Montana case—as relevant to determining whether the groups’ major purposes were to nominate or elect candidates. Judge Christopher Cooper found the Republican commissioners’ conclusion that none of the electioneering communications were designed to influence elections “blinks reality.” Rather, he held that, at a minimum, “many or even most” electioneering communications are designed to influence elections.

Chief Judge Christensen’s decision is an important step in turning the tide against dark money organizations that seek to influence elections while ensuring voters do not have the full story. Voters’ interest in transparency does not hinge on whether the group in questions uses one of a limited set of magic words. The First Amendment is strengthened, not weakened, when voters are able to get the full picture about who is behind a message and are allowed to discuss and act on that information.