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Judge strikes down portion of Montana's 'clean campaign' law

Notice requirement on attack ads unconstitutional
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Posted at 5:28 PM, Jan 18, 2022
and last updated 2022-01-18 21:55:55-05

HELENA — A federal judge Tuesday struck down a portion of Montana’s “clean campaign act,” saying it’s an unconstitutional burden on free speech to require political committees to notify candidates about last-minute attack campaign material.

U.S. District Judge Don Molloy of Missoula said the so-called “fair notice” requirement, which applies only to material distributed within 10 days of the election, has the potential to “chill” campaign speech in the final days before an election.

“It imposes a more pernicious burden on speech, in that it delays, and sometimes even prevents, political speech on the basis of its content,” the judge wrote.

Molloy ruled in favor of Montana Citizens for Right to Work, a political committee that advocates against laws that allow union dues or membership as a requirement of employment.

Six days before the November 2020 election in Montana, the group sent 16,000 mailers to voters containing information on where candidates stood on “right to work” issues and organized labor. The mailers also asked voters to contact those candidates about their views on those issues.

The Montana Democratic Party then filed a complaint against Montana Citizens for Right to Work, saying it had ignored the state law requiring it to notify candidates whose names were mentioned in any campaign material sent within 10 days of the election.

The law is meant to give candidates notice, and a chance to respond, to last-minute material seen as negative campaigning against them.

Montana Commissioner of Political Practices Jeff Mangan found last March that the group had violated the law and offered to have them settle the complaint by paying an $8,000 fine.

Montana Citizens for Right to Work responded by suing Mangan to overturn the law. It said the requirements violated the First Amendment by imposing undue burdens on free speech, and also violated equal-protection guarantees, because it singled out political committees for the requirement.

Molloy agreed with the group on both counts.

He said any restriction on free speech must be “narrowly tailored to achieve a compelling state interest,” and that the state had failed to show any such interest.

Acceptable interests could include deterring corruption or providing the electorate with pertinent information before it votes, but the state did not show the law does either, Molloy said.

“Mangan presents no evidence showing that the disclosure of negative campaign ads to individual candidates combats corruption,” he said.

Molloy also said the requirement doesn’t inform the electorate, because it doesn’t require disclosure of anything to them, and that the desire to give candidates a chance to respond to last-minute negative ads is not a compelling reason to burden free speech.

“In a perfect political place, that notion makes sense,” he wrote. “But last-minute negativity is a reality whether endorsed or not. … While the court might agree that negative campaigning is distasteful, that is not a sufficient basis for interfering with core First Amendment rights.”