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Free Speech

Montana Campaign Finance Laws Unconstitutionally Vague as to Spending Money Driving to Talk to Voter Groups


From Butcher v. Knudsen, decided today by the Ninth Circuit (opinion by Judge Daniel Bress, joined by Judge Sandra Ikuta):

Two retirees, Ed Butcher and Lonny Bergstrom, operate a website that tracks the voting records of Republican state legislators in Montana. Several local Republican groups in Montana took an interest in the website and invited Butcher and Bergstrom to speak on their findings. Based on the travel expenses they incurred in giving these presentations— such as for gas, meals at McDonald's, and a night at a La Quinta Inn—Montana's Commissioner of Political Practices determined that Butcher and Bergstrom had formed a "political committee" under Montana law.

Because Butcher and Bergstrom had neither registered their alleged political committee with the state nor complied with numerous reporting obligations, the Commissioner concluded they were subject to a civil fine and civil prosecution. Butcher and Bergstrom argue, however, that Montana law is impermissibly vague because they lacked fair notice that their conduct would not be treated as "de minimis," and thus exempt, under Montana Administrative Rule 44.11.603.

We hold that Rule 44.11.603 is unconstitutionally vague as applied to Butcher and Bergstrom. Butcher and Bergstrom were engaged in core political speech that lies at the heart of the First Amendment. The protections against impermissibly vague laws, rooted here in the Due Process Clause of the Fourteenth Amendment, are at their maximum in this most sensitive area, in which insufficiently defined legal regimes can discourage valuable speech and invite unbalanced government regulation of less popular views.

In this case, Montana law did not give Butcher and Bergstrom fair notice that the travel expenses associated with their hobbyist speaking engagements transformed them into a two-person political committee subject to demanding disclosure and reporting requirements. We therefore reverse the district court's judgment to the contrary.

Judge William Fletcher dissented:

Butcher and Bergstrom argue that they had no way of knowing whether expenses for "the cost of gas, parking[,] and meals" were expenses "associated with volunteer services," and had no way of knowing whether they were covered by Montana's registration and reporting requirements. They do not argue that the definition of "the cost of gas, parking, and meals" is unconstitutionally vague. Rather, they argue that they are not a "political committee" under Montana law, but are, instead, "volunteers." They argue that if the term "volunteer services" does not include their activities, it is unconstitutionally vague as to them….

They are correct that "volunteers," even if acting together, do not become a "political committee" by virtue of making expenditures of more than $250. The Montana statute provides that expenditures by volunteers do not transform volunteers into a political committee: "The term [expenditure] does not mean … services provided without compensation by individuals volunteering a portion or all of their time on behalf of a candidate or political committee."

Butcher and Bergstrom did not act as "volunteers" within the meaning of [the statute]. By their own admission, they did not incur their travel costs as volunteers "on behalf of a political committee." Nor did they do so as volunteers on behalf of a particular candidate. Rather, they encouraged Republican groups in Montana to vote for or against various Republican candidates based on their past voting patterns in the Montana legislature.

Butcher and Bergstrom are not political naifs. They are sophisticated political actors. They acted in a concerted and sustained manner to bring accurate and relevant political information to interested political groups. In short, they engaged in valuable and protected First Amendment activity. But they did not do so as "volunteers" within the meaning of Montana election law. Rather, they did so as a "political committee."

These are just brief excerpts; the opinions are long and much more detailed—read them here. Congratulations to Matt Monforton of Monforton Law Offices PLLC, who represented the plaintiffs.