Groups sue state over election laws

Two grassroots organizations have filed

suit in Lewis and Clark County District Court claiming the state’s

Commissioner of Political Practices wrongly charged them with

violating Montana’s election laws on financial disclosure.

In their 58-page complaint filed Nov.

24, Western Tradition Partnership (WTP) and Montana Citizens For

Right To Work (MCRW) named Commissioner of Political Practices

Dennis Unsworth, Montana Attorney General Steve Bullock and the

county attorneys in Lewis and Clark County and Cascade County.

WTP and Champion Painting, of Bozeman,

won an earlier lawsuit naming Unsworth and Bullock on Oct. 18. The

victory overturned Montana’s 1912 Corrupt Practices Act, which

prohibited corporations from making independent political

expenditures.

Montana’s law came into conflict with

federal law after the U.S. Supreme Court ruled earlier this year in

Citizens United v. Federal Election Commission and OK’d corporate

and union spending on political ads for or against candidates.

Helena District Court Judge Jeffrey

Sherlock ruled the Montana’s 1912 Corrupt Practices Act

unconstitutional, noting that similar bans in Wisconsin and

Minnesota have already been declared unconstitutional.

State charges

Three days after Sher lock’s ruling,

Unsworth issued a 43-page statement charging WTP and the Coalition

For Energy and Environment (CEE) with violating state

campaign-finance laws on numerous occasions.

Unsworth cited testimony from former

WTP employees and flyers that he claimed demonstrates direct

political advocacy. He also accused WTP of creating a “sham

organization” — CEE — to hide its activities.

Following a two-year investigation,

Unsworth concluded that WTP had been involved in 19 Montana

legislative races in 2008, including the House District 3 race, in

which Mick Holm, D-Columbia Falls, lost to Dee Brown, R-Coram, and

the House District 8 race, in which Cheryl Steenson, D-Kalispell,

defeated Craig Witte, R-Kalispell.

Unsworth also cited a WTP PowerPoint

presentation called “WTP 2010 Election Year Program Executive

Briefing,” which he said “appears to be targeted to Montana

donors.” The program called for spending $77,000 on primary races

and $460,000 in the general election. A much larger program for

federal races targeted 15 Senate races and 30 House races with a

total projected cost of $8.2 million.

According to Unsworth, the

presentations for both programs claimed the following advantages:

“Corporate contributions allowed,” “No contributions limit,” and

“It’s confidential.” Notes on the Montana program included:

“There’s no limit to how much you can give,” “Finally, we’re not

required to report the name or the amount of any contribution we

receive,” and “You can just sit back on election night and see what

a difference you’ve made.”

Unsworth claims WTP tried to hide some

expenditures by attributing them to CEE, but “it is highly unlikely

that thousands of slick, oversize, full-color, glossy,

professionally designed and printed campaign flyers could have been

mailed out to registered voters in 13 or more ‘targeted’ Montana

legislative districts for the amount of contributions and

expenditures reported by CEE — less than $12,000,” he said.

Local election

WTP played a role in this year’s House

District 4 election, in which Will Hammerquist, D-Whitefish, lost

to Derek Skees, R-Kalispell. In a 6-by-10-inch glossy flyer mailed

to homes in the Whitefish district, WTP accused Hammerquist of

“plans to raid school funds.”

The flyer cited an Oct. 7 Whitefish

Pilot article in which Hammerquist said he wanted to re-direct

money from the state’s coal-tax trust fund that currently is

invested in out-of-state businesses to Montana businesses in order

to stimulate the local economy.

In the flyer, WTP claimed Hammerquist’s

plan would take money away from school districts in order to

“create Montana’s own version of Obama’s failed ‘stimulus’.” The

flyer did not mention Derek Skees, but it advised readers to call

Hammerquist and provided his phone number.

WTP also mailed a newsletter to HD4

residents signed by WTP executive director Don Ferguson claiming

Hammerquist had “flatly refused” to fill out WTP’s campaign survey

and “repudiate his past support for radical greens’ high-cost,

tax-hiking, job-killing agenda for Montana.”

“Should Gang Green succeed in

installing more of their puppet politicians in power in Helena, the

results will be more efforts to block even the most responsible

energy development, more lost jobs, and blocked access to public

lands — and more assaults on private property rights as well,”

Ferguson said.

Ferguson also noted that “Republican

Derek Skees has pledged 100 percent support for high-paying jobs

and affordable energy for Montana.” An enclosed copy of the survey

noted that Skees was correct on all 16 survey questions, and a form

on the back solicited donations to WTP.

Hammerquist works for the National

Parks Conservation Association as the Glacier National Park program

manager. He has played an active role in trying to stop coal mining

and oil and gas development in the North Fork of the Flathead River

drainage, including in Canada.

Grassroots

In its own words, WTP is “a grassroots

organization whose primary purpose is to assist Americans to

‘Rediscover America’s National Treasures’ by promoting responsible

natural resource development, private property rights, and multiple

use of, and access to, public lands.”

WTP was founded in May 2007 by former

Republican U.S. Represen tative for Montana Ron Marlenee and former

Mon tana legislator John Sinrud. The group reportedly has ties with

several groups, including its co-plaintiff against the state, MCRW,

a right-to-work group headed up by Christian LeFer, of

Kalispell.

Sinrud, a 1998 Montana State University

graduate, where he was president of the College Republicans, was a

Republican state representative for Bozeman from 2001-2007 and

chaired the House Committee on Appropriations. He moved to the

Flathead Valley and replaced George Culpepper as government affairs

director for the Northwest Montana Association of Realtors in June

2009.

Sinrud attends some Whitefish planning

board and city council meetings. In this year’s election, he spoke

in favor of Constitutional Initiative 105, which has passed and

will ban realty transfer fees, an idea past Whitefish city

councilors have discussed as a revenue source. Opponents of CI-105

claimed significant money was spent by real estate interests in

Chicago to promote the initiative, meaning out-of-state

corporations were trying to amend the Montana Constitution. Sinrud

left WTP in November 2008.

According to its Web site, WTP’s

legislative agenda includes halting governmental takings without

compensation, property tax relief for responsible natural resource

developers, streamlining regulation of forest-fuel reduction

projects, extending a “tax holiday” on energy and resource

development, prohibiting “venue shopping” by environmentalists,

making the losers pay for environmental lawsuits, and letting

legislators review pollution standards set by “unaccountable state

bureaucratic agencies.”

Sues state

In their 11-count complaint, WTP and

MCRW claim that some Montana election statutes are unconstitutional

because they are “impermissibly vague, overbroad” and infringe on

free speech rights. They cite the U.S. Supreme Court’s ruling in

Citizens United as saying that “independent expenditures and the

corporate form pose no threat to the electoral process.”

The complaint claims that Unsworth’s

labeling of WTP as a “political committee” places an “onerous

burden” on people who want to advocate a political opinion. It

cites the case where Unsworth ruled an East Helena church had

formed an “incidental political committee.”

The Ninth Circuit Court of Appeals,

however, overturned U.S. District Court Judge Donald Molloy, who

ruled last year in support of Unsworth’s complaint. The appeals

court said state regulation of the Canyon Ferry Road Baptist

Church’s “negligible” expenditures in support of a 2004 state

ballot initiative defining marriage would cause “fatal problems of

unconstitutional vagueness.”

WTP and MCRW also claims the way

Unsworth’s charges were made against them violated the groups’ due

process rights. The process and procedures “provide no meaningful

opportunity to defend against a complaint or to cross-examine

persons or materials used by the Commissioner of Political

Practices.”

Unsworth’s allegations that the “flyers

are illegal,” that WTP “engaged in money-laundering,” and that CEE

was a “sham organization” were released to the public before WTP

could respond, the complaint points out. Furthermore, Unsworth’s

lengthy investigation meant WTP “has had to conduct its political

speech and activities in Montana for two years under a cloud of

possible state persecution.” It could take two more years for the

Office of Political Practices to conclude its investigation of

other allegations against WTP, the complaint notes.

Perhaps most fundamentally, the

complaint states, “’Speech’ protected by the First Amendment to the

United States Constitution includes ‘political speech.’” As such,

state laws that attempt to regulate disclosure and registration of

free-speech rights “must pass ‘exacting scrutiny,’” which Montana

laws fail to do.

Other cases

WTP’s and MCRW’s case is not the only

lawsuit claiming the state’s campaign-finance laws are

unconstitutional. Montana Shrugged, a Tea Party organization in

Billings, got help from the James Madison Center for Free Speech,

in Terre Haute, Ind., in filing a lawsuit against Unsworth, Bullock

and the Yellowstone county attorney in U.S. District Court on Oct.

28.

Bullock responded by saying the lawsuit

is “part of a coordinated, national effort to dismantle campaign

and election laws” and “to tell voters they have no right to know

who’s influencing elections.”

The Office of Political Practices

recently reported a successful outcome in another case. The office

settled its lawsuit against Montanans In Action on Nov. 10, four

years after Unsworth initiated an investigation of the group. He

claimed the group, which had supported three ballot initiatives in

2006, was backed by Howard Rich, a New York real estate developer

and prominent supporter of Libertarian causes.

Montanans In Action’s chairman, Trevis

Butcher, said his group had done nothing wrong but agreed to settle

because it was tired of the lengthy legal battle. The group agreed

to disclose the source of the $1.2 million it spent supporting the

ballot initiatives, and Unsworth agreed to lower the penalty

assessed against the group to $75,000.