Protect The 1st welcomes the recent decision by the Ninth Circuit (of all places!) in Butcher v. Knudsen, striking down a provision in Montana campaign finance law that is so vague and restrictive that it harms the First Amendment’s guarantee to protect “core political speech.” (A hat tip to Eugene Volokh of Reason Magazine for detailing the arguments of this case.)
Ed Butcher and Lonny Bergstom created a website that tracks the voting records of Montana’s Republican state legislators. The two were invited to discuss their website and its findings by several Republican groups in the state. During their travels, Butcher and Bergstrom billed several expenses for gas, food, and lodgings. The Montana Commissioner of Political Practices determined that these incidental expenses made the pair a “political committee” under Montana law. Butcher and Bergstrom were subsequently subject to a retroactive civil fine and civil prosecution.
The court held that Rule 44.11.603, the state law that determines whether certain “acts, contributions, or expenditures are de minimis and therefore do not trigger” campaign finance law, is unconstitutionally vague. Butcher and Bergstrom argued that they were not given fair notice that their conduct would cross a line.
Of the five freedoms enumerated in the First Amendment, the framers of the Constitution were most adamant about protecting political speech. Montana’s rule not only runs roughshod over the First Amendment, but it also runs afoul of the Due Process Clause of the Fourteenth Amendment, in which protections against vague laws are of key importance. A law that can punish two citizens by turning them into a political committee simply because they billed expenses in the exercise of their First Amendment rights is expansive enough to threaten the rights of all of us.
Judge William Fletcher in his dissent does not contest that Butcher and Bergstrom weren’t given fair warning. He also agrees that volunteers do not become a political committee simply by spending more than $250. Judge Fletcher nonetheless in his dissent found against Butcher and Bergstrom because the pair “by their own admission” did not incur travel costs as volunteers. Judge Fletcher calls the two “sophisticated political actors” who “encouraged Republican groups in Montana to vote for or against various Republican candidates based on their past voting patterns in the Montana legislature.” As such, they did not do so as “volunteers,” but as a “political committee.” The gall of them! Unregulated individuals going hither and yon to speak out on the voting records of legislators!
Judge Fletcher takes no consideration of the impropriety of the lack of fair notice. His dissent leaves worrying room to expand application of the law to anyone who spends money while traveling for political causes. Protect The 1st supports the court’s decision to strike down this provision.