Montana gets D grade in 2015 State Integrity Investigation

Ground Zero for a campaign finance donnybrook

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Montanans like to say that their state of just over a million people is like a small town, and that the highway stretching from the timbered western mountains to the eastern plains is simply a long main street. These characterizations imply that while Big Sky country is vast, it doesn’t offer much cover for escaping neighborly scrutiny.

The constitution promises access to state documents and meetings, politicians are eager to expose scoundrels in the rival party, and the public is vigilant — or so says conventional wisdom. “Montana citizens see something going wrong and they don’t feel nosy, they don’t feel disempowered, they just fire off a complaint,” said state Commissioner of Political Practices Jonathan Motl.

But the idea that the Treasure State’s government is as pristine as the mountain air has also fostered a complacency towards certain corruption safeguards. Citizens still face expensive court battles if denied access to information, lobbying and ethics oversight is weak, legislators balk at funding oversight and campaign finance rules are shot through with holes. For those reasons, Montana earned a score of 64 and a grade of D, placing it 21st in the State Integrity Investigation, an assessment of state government accountability and transparency conducted by the Center for Public Integrity and Global Integrity.

The results aren’t vastly different from the first State Integrity Investigation, in 2012, in which Montana scored 68 — a D+ — and ranked 31st among the states.  The two scores are not directly comparable, however, due to changes made to improve and update the project and methodology, such as eliminating the category for redistricting, a process that generally occurs only once every 10 years.

Corrupt campaigns

Blatant graft in the late 19th century, when affluent copper barons brazenly bribed state legislators, made a lasting impact on Montana’s political sensibilities. When citizens awoke to the influence of corporate money, “they called it as they saw it: Corruption,” said former state solicitor and University of Montana law professor Anthony Johnstone in a 2012 lecture. In 1912 voters passed a ballot initiative called the Corrupt Practices Act, banning direct corporate election spending.

But when the U.S Supreme Court decided in 2012 that its Citizens United ruling two years earlier applied to Montana, the justices struck down the act as a First Amendment violation.

Partly as a result, Montana’s campaign finance watchdog, the commissioner of political practices, has since been inundated with complaints filed against political committees and corporations. These complaints allege that candidates broke Montana’s remaining election laws by “coordinating” spending with PACs and that companies and nonprofits have failed to properly register as PACs and disclose their spending. The commissioner accepted a record 81 complaints last year. Heightened public awareness may be playing a role in the uptick.

With a barebones staff of seven, the current commissioner made 86 decisions resolving 107 campaign finance complaints in 2014, compared to 10 to 30 decisions per year under earlier commissioners. Many allegations, some part of a complaint backlog dating to 2010, have been valid.  For example, after the commissioner filed a complaint in district court, the judge found that former Republican representative Joel Boniek exhibited “quid pro quo corruption” in taking $9,060 in undisclosed contributions from the nonprofit Western Tradition Partnership ahead of the 2010 election.

The enhanced enforcement is not universally popular. In 2015, the House budget committee attempted, but failed, to cut funding for the commissioner’s only full time attorney. The office remains too under-resourced to audit campaign finance forms.

Lobbying and ethics enforcement

The commissioner of political practices also oversees ethics and lobbying, but the office’s modest size means those areas have not enjoyed the same scrutiny as campaign finance.

Montana has a fairly comprehensive ethics code. And while severe ethical violations are rare, it’s hard to know if stronger oversight would expose a greater volume of problems. The commissioner has investigated one ethics complaint since 2012.

Actual auditing of lobbying disclosures and personal financial disclosures is cursory, at best. In addition, many financial disclosures do not provide enough detail to assess conflicts of interest. In Montana’s citizen legislature, conflict of interest is often unavoidable and the state’s ethics code favors participation over recusal.

The House and Senate also have ethics committees, but the House panel hasn’t met since 2003 and the Senate committee last met in 1999. Some violations surface anyway, such as when a state senator’s aide resigned this year after colleagues discovered he was also registered as a lobbyist.

There have only been five lobbying complaints to the commissioner of political practices since 2001. Perhaps there’s no reason to complain or maybe lobbyists are staying mum. "What has transpired is this informal, unwritten agreement that if you don’t complain about me I won’t complain about you,” said Steven Brown, who worked as retained counsel for seven commissioners of political practices.

There’s also no disclosure requirement at all for executive branch lobbying. Lobbying oversight “is in substantial need of reform,” Brown said.

But convincing the legislature of that seems nearly impossible, he added. Montana’s part-time legislators rely heavily on lobbyists for information and institutional knowledge.

Access to information

Montana has clear right to know and open meetings laws, and it’s become easier over the years for citizens to access budget information, audit reports, legislative hearings and state Supreme Court records online.

But those trying to dig deeper can meet resistance. Technological infrastructure for many records remains poor, and citizens and journalists denied records can face expensive and long judicial appeals.

Some forms of access have improved in recent years. The administration of Democratic Gov. Steve Bullock launched a government transparency website for state spending and salary data in 2013. In 2014, the state Supreme Court also reversed its 2006 decision requiring an individual to have a direct personal interest in a matter before suing an agency for information. This year, the legislature passed a bill requiring that some state boards “publish” audio or video of their meetings online.

Judiciary at risk

Major ethical violations are uncommon in Montana’s judiciary, but some have been serious. In 2014 the Montana Judicial Standards Commission censured and suspended District Judge G. Todd Baugh for saying a 14-year-old rape victim appeared "older than her chronological age.”

In 2014, partly owing to the new fundraising environment, one of the year’s two nonpartisan Supreme Court races saw unprecedented outside spending and partisan rhetoric. Incumbent Mike Wheat defeated Lawrence VanDyke with 59 percent of the vote — ­despite VanDyke’s backing from a national Republican group. Former Montana Supreme Court Justice Jim Nelson worries that this new atmosphere threatens Montana’s history of a nonpartisan and trustworthy judiciary. Nelson once advocated for judicial elections but now thinks that dark money has ruined them. “I think it’s broken now,” he says of Montana’s judicial selection process.

Struggles to reform

In the wake of Citizens United and its ripple effects here, Montana is now considering more comprehensive disclosure rules to bring election spending out of the shadows.

In April, a coalition of Republicans and Democrats passed the Montana Disclose Act. It requires more frequent pre-election spending reporting, broadens the definition of coordination, establishes disclosure requirements for so-called electioneering communications, and allows the commissioner to require electronic reporting.

Now that the new law’s in place, the commissioner’s office is overhauling its campaign finance rules. Proposed rules would require politically active social welfare groups to report their ad buys, but stop short of requiring them to report all donors. But the law enabling the new rules is already under attack. James Bopp, the same Indiana attorney who won Citizens United v. Federal Election Commission, thus ending Montana’s corporate spending ban, is suing Montana in U.S. District Court. He claims that Montana’s current, and pending, disclosure requirements are overly broad and unconstitutional.

Some of Montana’s conservative lawmakers, including those recently sanctioned for campaign finance violations, share those criticisms. But the Republican state senator who sponsored the new law rejects the complaints.  “I see the fox saying, ‘Oh, leave the chicken house door open, because I won’t come in,’” Sen. Duane Ankney told the Missoulian.“That doesn’t work.”

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