November 21, 2016
Dear Fellow Montanans:
I last wrote about the campaign practice standard setting a 100 foot line from a polling place at which campaign speech has to stop, allowing the voter to enter the polling place and voting booth without pressure from those who are campaigning. This 100 foot line is a community standard, made in the form of a state law (statute) that prohibits campaign speech in the space protected by the 100 foot line. It is a narrowly drawn statute in that it is limited to 100 feet from the polling place and it serves a compelling community interest: privacy in voting.
I offer this as the second letter on this issue of the general or community interest of Montanans in campaign activity or practices. Just over a week before the 2016 elections, a Montana federal court issued an Order sustaining major parts of Montana's campaign practice laws from a sweeping constitutional challenge. The challenge was brought by a non-profit entity represented by an attorney, James Bopp, whose office is in Indiana.
The challenge claimed that the standards set by Montana's reporting and disclosure laws required so much compliance work that they unconstitutionally interfered with campaign speech. Further, the challenge claimed that Montana's laws were unconstitutionally vague (that is, they could not be understood well enough to be followed). Finally, the challenge claimed that Montana's laws were unconstitutionally overbroad, requiring more reporting than necessary. The federal court disagreed with all challenges looking to the language of statute, administrative regulations, and COPP action, to find that Montana's reporting and disclosure campaign practices were narrowly drawn, stated clearly, and minimally invasive of campaign speech. The Court determined that there is a "compelling state interest in informing voters who or what entity is trying to persuade them to vote in a certain way." The Court granted summary judgment to the State of Montana on all claims of the complaint.
You might recall that the 2015 Montana Legislature passed a sweeping reform of Montana's reporting and disclosure laws (the Disclose Act). In the summer of 2015, the COPP further implemented the Disclose Act by proposing and adopting a set of supportive administrative rules. It was this law (statute and rules) that were sustained by the federal court decision. In effect, the Court said that these statutes and rules properly defined the reporting and disclosure equivalent of the 100 foot line.
It requires commitment and persistence to write and then defend campaign practice standards. The standards must be strong enough to meet the community expectation of significant campaign disclosure and yet nuanced enough to defeat the inevitable challenge from individuals claiming interference with first amendment speech rights. Montana's campaign practice standards are holding their own.