The final days of any legislative session are a lot like flying: hours of boredom, punctuated by moments of sheer terror. This session has been a little different. It’s a lot like watching paint dry, followed by moments of intense frustration.
That was the case yesterday when a small group of liberal Republicans joined all House Democrats to kill Senate Bill 368 on a tie vote, 50 voting yes and 50 voting no. You may recall Senate Bill 368 was a bill to generally revise Montana’s campaign practice laws. Its main goal was to provide accountability for what some see as an out-of-control Commissioner of Political Practices. Those who like the present setup used a small portion of the bill that would have increased donation limits as an excuse to vote no. The only problem is a federal judge last year ruled that Montana’s donation limits are so low that they violate the First Amendment to the U.S. Constitution.
Political donations have long been seen by the courts as a form of expression, or free speech, and courts have ruled that states should not be allowed to chill free speech by setting up artificially low donation limits. It would be similar to a state saying, “You can speak in favor of your favorite political candidate, but only on Tuesdays from 1:00 to 1:15.” In this case, the court told the legislature to fix the problem, and the legislature said, “No.”
The main part of the bill, however, dealt with something much more serious, the issue of the commissioner amassing so much power that he acts as judge, jury and executioner. Not my term, that was a description used by a federal judge in a trial involving the commissioner in 2016. Currently, the commissioner can file a complaint, investigate the complaint, issue a ruling and issue a fine: judge, jury and executioner. Senate Bill 368 would have brought accountability in two ways: First, it would have given someone charged with a violation the chance to review a preliminary finding and decide whether or not to appeal before a final ruling was issued. The case could either be appealed to District Court, which is currently the law, or it could go to mediation. Either way, a third party would be looking over the commissioner’s shoulder. Another benefit of the bill would be the creation of a page on the commissioner’s website that would track the ongoing expenses related to cases currently under investigation.
This one hits home for us. Two years ago, the commissioner investigated the Montana Family Foundation for election-related activities. No one had filed a complaint. He simply did it because we were a conservative organization involved in elections. His staff went clear back to 2012 and found a report that we had filed three days late. Nothing in the report was questioned. It was just the fact that the report was late. He then fined us $500. Did that fine cover the hours spent by staff and attorneys going back years digging through reports, looking for minuscule violations, when there wasn’t even a complaint filed? I seriously doubt it, and Senate Bill 368 would shine a bright light on that kind of waste of taxpayer dollars.
When it comes to government, accountability is a hard pill to swallow. But as Lord Acton once said, “Power tends to corrupt, and absolute power corrupts absolutely.” It’s as predictable as the laws of physics, and it’s been a part of politics for as long as politicians have served in public office.