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SENATE BILL NO. 284
INTRODUCED BY J. GROSS, B. BENNETT, P. FLOWERS, T. JACOBSON, M. MACDONALD, S. MALEK, E. MCCLAFFERTY, N. MCCONNELL, M. MCNALLY, M. PHILLIPS, J. POMNICHOWSKI, D. SALOMON, D. SANDS, J. SESSO, F. SMITH, G. VUCKOVICH, S. WEBBER
A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING CERTAIN DISCLOSURES ON THE FACE OF ELECTION MATERIAL THAT REFERENCES A CANDIDATE'S VOTING RECORD; AND AMENDING SECTION 13-35-225, MCA."
WHEREAS, Montana citizens have a compelling state interest in knowing what information is behind claims on election materials about a candidate's voting record; and
WHEREAS, requiring disclosure of information underlying claims about a candidate's voting record as set forth in this bill does not violate the First Amendment constitutional right to free speech because the requirement and restriction on the right to free speech is narrowly tailored to serve a compelling state interest; and
WHEREAS, the First Amendment prevents the government from proscribing speech unless the proscription is narrowly tailored to serve a compelling state interest (see R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), and Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227, 192 L. Ed. 2d 236 (2015), and Am. Civ. Liberties Union of Nevada v. Heller, 378 F.3d 979 (9th Cir. 2004)); and
WHEREAS, a regulation of speech that requires vote reporting requirements in political materials is a content-based restriction and must be reviewed under strict scrutiny; and
WHEREAS, the restriction provided for in this bill is a content-based restriction, subject to strict scrutiny and only enforceable if it is narrowly tailored to a compelling state interest, because it is based on a topic, in this case campaign disclosures; and
WHEREAS, this bill provides information that citizens would not otherwise know and have no other way of obtaining because the information required by the bill is the information on which claims made on election materials about a candidate's vote are based; and
WHEREAS, no alternate means exists to find this information and there is no database, state-provided or otherwise, that provides the link to the underlying basis of this factual information because the information must be provided by the person or entity making the claim; and
WHEREAS, three previous versions of this statute requiring information underlying claims about a candidate's voting record on election materials have been found unenforceable; and
WHEREAS, the 2011 version of section 13-35-225(3)(a)(ii), Montana Code Annotated (MCA), required that when printed election material includes information about a candidate's voting record, the material must also include "a disclosure of contrasting votes known to have been made by the candidate on the same issue if closely related in time"; and
WHEREAS, this bill does not include the unenforceable provision in the 2011 version of section 13-35-225(3)(a)(ii) that required disclosure on the face of election material referencing a particular vote of contrasting votes known to have been made by the candidate "on the same issue if closely related in time" (see Lair v. Murry, 817 F. Supp. 2d 1058 (D. Mont. 2012)); and
WHEREAS, this 2011 version was determined to be unconstitutionally vague in Lair v. Murry, 817 F. Supp. 2d 1058 (D. Mont. 2012), because the phrase "closely related in time" was not defined anywhere in Montana's statutes or regulations and a candidate could not know what this term meant; and
WHEREAS, the requirement of reporting on "the same issue" was likewise unconstitutionally vague because it was undefined and ambiguous what that term meant and a person "of ordinary intelligence" would not have "a reasonable opportunity to know what is prohibited" by the phrase "the same issue" and this requirement failed to clearly mark the boundary between permissible and impermissible speech; and
WHEREAS, in Montforton v. Motl, 2014 U.S. Dist. LEXIS 190170 (D. Mont. 2014), the 2013 version of section 13-35-225(3)(a)(ii), MCA, that required disclosure of contrasting votes known to have been made by the candidate on "the same issue if the contrasting votes were made in any of the previous 6 years" was determined to be unconstitutionally vague because the term "issue" was not defined; and
WHEREAS, this bill does not include the unconstitutionally vague terms that required disclosure of votes on the "same issue" or for the "previous 6 years"; and
WHEREAS, the 2015 version of section 13-35-225(3)(a)(ii), MCA, required disclosure of "all votes made by the candidate on the same legislative bill or enactment"; and
WHEREAS, in Nat'l Ass'n for Gun Rights v. Motl, 188 F. Supp. 3d 1020 (D. Mont. 2016), the restriction in the 2015 version was not enforceable because it was not narrowly tailored to serve a compelling state interest because the information required to be reported was "all votes made by the candidate on the same legislative bill or enactment" and was information that is readily available on the internet and could be accessed on the legislative website to show all the votes a candidate took on a certain bill; and
WHEREAS, the 2015 version of section 13-35-225(3)(a)(ii) impermissibly compelled speech in violation of the First Amendment because it was not narrowly tailored to serve a compelling state interest because it required "disclosure of all votes made by the candidate on the same legislative bill or enactment"; and
WHEREAS, the court stated it could be serving a compelling state interest but it was not narrowly tailored since the information was already publicly available about all votes taken on a bill; and
WHEREAS, no internet database or other compilation of information can tell citizens what information is underlying claims on election materials about an individual's voting record; and
WHEREAS, no court has determined that the sole requirement that information underlying the reference to a particular vote or votes on which a claim about a candidate's voting record is based is by itself unconstitutional or unenforceable; and
WHEREAS, this bill does not include portions of Montana's campaign disclosure requirements previously found unconstitutional; and
WHEREAS, a statute must be sufficiently clear so as to allow persons of "ordinary intelligence a reasonable opportunity to know what is prohibited" and the information required in this bill clearly allows a person of ordinary intelligence to know what information is required and what is therefore prohibited.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 13-35-225, MCA, is amended to read:
"13-35-225. Election materials not to be anonymous -- statement of accuracy -- notice -- penalty. (1) All election communications, electioneering communications, and independent expenditures must clearly and conspicuously include the attribution "paid for by" followed by the name and address of the person who made or financed the expenditure for the communication. The attribution must contain:
(a) for election communications or electioneering communications financed by a candidate or a candidate's campaign finances, the name and the address of the candidate or the candidate's campaign;
(b) for election communications, electioneering communications, or independent expenditures financed by a political committee, the name of the committee, the name of the committee treasurer, and the address of the committee or the committee treasurer; and
(c) for election communications, electioneering communications, or independent expenditures financed by a political committee that is a corporation or a union, the name of the corporation or union, its chief executive officer or equivalent, and the address of the principal place of business.
(2) Communications in a partisan election financed by a candidate or a political committee organized on the candidate's behalf must state the candidate's party affiliation or include the party symbol.
(3) (a) Printed election material described in subsection (1) that includes information about another candidate's voting record must include the following:
(i) a reference to the particular vote or votes upon which the information is based;
(ii) a disclosure of all votes made by the candidate on the same legislative bill or enactment; and
(iii) a statement, signed as provided in subsection (3)(b), that to the best of the signer's knowledge, the statements made about the other candidate's voting record are accurate and true.
(b) The statement required under subsection (3)(a) must be signed:
(i) by the candidate if the election material was prepared for the candidate and includes information about another candidate's voting record; or
(ii) by the person financing the communication or the person's agent if the election material was not prepared for a candidate.
(3) All election material described in subsection (1) that includes information about another candidate's voting record must include a reference to the particular vote or votes on which the information is based so that citizens will know what vote is referenced in the communication. The reference must include:
(a) the title of the bill or resolution. For the purposes of this subsection (3)(a), the first clause of the bill or resolution's title or a concise abbreviation of the title's substance is sufficient.
(b) the year in which the vote was made; and
(c) the bill number or resolution number on which the vote was made.
(4) If a document or other article of advertising is too small for the requirements of subsections (1) through (3) to be conveniently included, the candidate responsible for the material or the person financing the communication shall file a copy of the article with the commissioner of political practices, together with the required information or statement, at the time of its public distribution.
(5) If information required in subsections (1) through (3) is omitted or not printed or if the information required by subsection (4) is not filed with the commissioner, upon discovery of or notification about the omission, the candidate responsible for the material or the person financing the communication shall:
(a) file notification of the omission with the commissioner of political practices within 2 business days of the discovery or notification;
(b) bring the material into compliance with subsections (1) through (3) or file the information required by subsection (4) with the commissioner; and
(c) withdraw any noncompliant communication from circulation as soon as reasonably possible.
(6) Whenever the commissioner receives a complaint alleging any violation of subsections (1) through (3), the commissioner shall as soon as practicable assess the merits of the complaint.
(7) (a) If the commissioner determines that the complaint has merit, the commissioner shall notify the complainant and the candidate or political committee of the commissioner's determination. The notice must state that the candidate or political committee shall bring the material into compliance as required under this section:
(i) within 2 business days after receiving the notification if the notification occurs more than 7 days prior to an election; or
(ii) within 24 hours after receiving the notification if the notification occurs 7 days or less prior to an election.
(b) When notifying the candidate or campaign committee under subsection (7)(a), the commissioner shall include a statement that if the candidate or political committee fails to bring the material into compliance as required under this section, the candidate or political committee is subject to a civil penalty pursuant to 13-37-128."
- END -
Latest Version of SB 284
(SB0284.02)
Processed for the Web on February 27, 2019 (5:58pm)
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