Montana lawmakers collectively said they want clean campaigns, but U.S. District Judge Donald Molloy grilled a couple of lawyers Tuesday on whether one of the legislature’s expressions of that goal, the Clean Campaign Act, tramples on the right to free speech and equal protection, as an incidental political committee alleges.
In a brief hearing in U.S. District Court in Missoula, the judge asked if the statute could be fixed by taking out a specific section that created the problem: “And if not, how would you draft the statute?”
Generally, the “fair notice” statute requires candidates or political committees to provide opposing candidates with copies of campaign material intended for public distribution in the 10 days before an election, with some exceptions. The statute notes the times for distribution, including “if the material is disseminated by direct mail, on the date of the postmark.”
Lawyer Matthew Monforton, representing plaintiffs Montana Citizens for Right to Work, said he wouldn’t enact the statute at all. For one thing, he argued the fact that mail delivery can take one to three days disadvantages candidates who use the postal system and essentially forces them to give their opponents an advanced copy of their campaign material. Monforton also said the First Amendment doesn’t allow for one of the statute’s distinctions — an exception for ads that are endorsements as opposed ones that are negative.
“The First Amendment has a problem with the Legislature favoring negative ads or disfavoring negative ads,” Monforton said.
Nonetheless, the judge pressed the matter of whether the statute could be written in a way that was narrow enough to fortify clean campaigns without unduly squashing the right to free speech. He also noted the statute didn’t dictate or preclude the content of any ad; rather, it set a timeframe and a requirement to share material.
“It’s one thing to take something apart,” Molloy said of the statute. “It’s another thing to build it.”
The lawsuit names as defendant Commissioner of Political Practices Jeff Mangan, whose job is to enforce the act in dispute. On his behalf, lawyer John Morrison argued the statute actually protects the First Amendment in a broad sense because it allows more information to pour into the marketplace of ideas. He said it protects the electorate as well in giving candidates “the opportunity to respond.”
But Molloy questioned whether the chance to respond was a protected right: “Is that a new constitutional right?”
Morrison said it wasn’t, but it was part of a series of values making up the First Amendment, such as transparency, accountability and integrity in speech. Plus, he said, the requirement to alert people to certain campaign material took very little time; it was, compared to other campaign rules, a much smaller burden to meet; and it targeted a very specific audience.
“It only gets at those people and those groups that are in the business of political communication to try to influence voters,” Morrison said.
He also argued that if the requirement about mailing material created a problem, the act could be fixed by taking out the section that says opposing candidates must get material on the date of the postmark; he said the rest of the statute would hold up.
The court challenge arose from a dispute between Montana Citizens for Right to Work and the Montana Democratic Party. As outlined in the lawsuit, the Right to Work group sent out mailers with candidates’ opinions on right-to-work laws, but the Right to Work group did not provide copies to the candidates.
Subsequently, a Montana Democratic Party advisor took the matter to the Commissioner of Political Practices, alleging the Right to Work group violated the Clean Campaign Act. The lawsuit said the commissioner found in favor of the Montana Democratic Party and, after the county attorney’s office referred the matter back, the commissioner demanded the Montana Citizens for Right to Work pay an $8,000 fine.
The lawsuit alleges the act the Commissioner of Political Practices is being asked to enforce is unconstitutional. So it asks the court to stop the commissioner from taking action based on the statute.
Tuesday, Molloy thanked the lawyers for preparing their arguments, especially in light of the challenges to election integrity around the country, and he told them he would have a decision within two weeks, if not sooner.