Between August 18 and 20, Liz Fordahl and Scott Skokos received two postcards in the mail from the Montana chapter of Americans for Prosperity. The first postcard bears photos of incumbent Governor Steve Bullock and a broken piggy bank and declares that Governor Bullock is “bankrupting Montana.” The card goes on to urge the recipient to call the Governor’s office. The second postcard bears the photo of state Senator Robyn Driscoll and states that the senator has a failing grade on her “Montana freedom scorecard” and encourages the postcard recipient to call the senator and tell her to stand up to big government. Mr. Skokos filed a complaint with the Montana Commissioner of Political Practices (COPP) claiming the postcards were a violation of state election law.

It seems like well-trodden ground that political action committees, such as Americans for Prosperity, can reach out to voters directly about candidates running for political office, as long as those communications are issue advocacy and not express political advocacy. But in April 2015, Governor Bullock signed the bipartisan Montana Disclose Act barring political committees that have not disclosed their donors to the COPP from sending any “electioneering communications” to voters within sixty days of when voting begins. COPP determined that the sixty-day pre-election period began on August 16, measuring from the date absentee voting begins in the state. Americans for Prosperity, whose nationwide donor network is largely anonymous, did not disclose its donors to COPP. Under the Disclose Act, Americans for Prosperity can no longer send even advocacy advertisements that name or bear likenesses of particular candidates to voters in Montana from August 16 until after the election.

This complaint was the first test of the new legislation and on September 14, Commissioner Jonathan Motl dismissed the case. The dismissal decision itself, however, is interesting for several reasons; it reveals the Commissioner’s framework for analyzing such claims and refines how the COPP will determine whether a communication occurs within the sixty-day pre-election period.

The decision begins with a determination that the materials sent were issue advocacy, not express advocacy, under the standard set by the U.S. Supreme Court in FEC v. Wisconsin Right to Life, Inc. The Disclose Act does not differentiate between issue and express advocacy but defines electioneering communications broadly to include any communication that includes the name or likeness of a candidate running for office. However, absent the Disclose Act and before the sixty-day pre-election period, issue advocacy is expressly allowed under U.S. Supreme Court precedent.

The Commissioner then went on to analyze reporting and disclosure requirements under the Disclose Act for any such communications. He found that communications after August 16 from groups that have not disclosed their donors to COPP are prohibited. However, communications before that period are not. Americans for Prosperity argued that the postcards were mailed August 12, four days before the August 16 cutoff, and should be allowed.  Commissioner Motl agreed.  The Commissioner interpreted the sixty-day deadline to allow for communications that were sent before the August 16 deadline and were received within a “reasonable (a week or less) amount of time.” Under the decision, the date of the communication for purposes of applying the Act is the date on which the communication is mailed, not the date it is received.

In dismissing the complaint, Commissioner Motl refined the statute and protected it from some future lines of attack. Reporters previously argued that the Act was susceptible to attacks as unconstitutionally vague because the statute was unclear about how to ascertain the date of electioneering communications sent through the mail.  Commissioner Motl’s interpretation that the applicable date for purposes of the statute is the date the communication was sent provides both a definitive date for purposes of legal analysis and prevents groups from being liable for the “vagaries of third party action.” In dismissing the claim, Commissioner Motl put the Act on surer footing: Any future attacks will likely have to argue against the Act directly as a limitation on Free Speech rights, rather than indirectly as poorly drafted legislation.

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