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Judge: Montana Clean Campaign Act is unconstitutional

January 20, 2022 GMT

HELENA, Mont. (AP) — A 2007 Montana law that was meant to curb last-minute campaign attacks violates free speech rights, a federal judge has ruled.

U.S. District Court Judge Donald Molloy ruled Tuesday that the Montana Clean Campaign Act “delays, and sometimes even prevents, political speech on the basis of content.”

The law was challenged by Montana Citizens for Right to Work, a political committee that lobbied for a law to prohibit union membership as a condition of employment.

On Oct. 28, 2020, the group sent campaign mailers in 20 legislative districts that distinguished the candidates in each race based on their opinions of right-to-work laws. An advisor for the Montana Democratic Party filed a complaint with the Commissioner of Political Practices, who found the group didn’t abide by the Clean Campaign Act because they did not notify the candidates who opposed right-to-work laws.

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Commissioner Jeff Mangan offered to settle the case for an $8,000 fine or said he would take the group to court and seek a $20,000 fine.

“A $20,000 penalty for criticizing legislators is absurd even by Montana’s anti free-speech standards,” Matthew Monforton, a Bozeman attorney for the group and former Republican lawmaker, told the Montana State News Bureau when the lawsuit was filed in September.

Montana Citizens for Right to Work argued the Clean Campaign Act is unconstitutional because it requires political committees to notify candidates about negative campaigning planned for the 10 days prior to an election, but does not require them to notify candidates they are endorsing. Molloy agreed.

His ruling quotes a 1995 decision in Missouri that states “while the court might agree that negative campaigning is distasteful, that is not a sufficient basis for interfering with core First Amendment rights.”

The bill creating the act was sponsored by then-Sen. Joe Balyeat, R-Bozeman, and passed the Legislature nearly unanimously.

Balyeat said Wednesday that as a conservative he did not support more government regulation to curb negative campaigning, but felt his bill would give candidates a way to police each other.

“I believed that the best solution to this problem was to require that any negative ad which targeted a person right before the election must be provided to that person at the same time that the ad is first published,” Balyeat said. “This gives the targeted person time to respond and advertise their version of the facts, so that voters hear both sides before Election Day.”

Monforton said Wednesday that “the Clean Campaign Act is a typical incumbency-protection act. Incumbents don’t like criticism, especially near Election Day. So they enacted a statute to deter it.”