ED BUTCHER V. AUSTIN KNUDSEN, No. 21-35010 (9th Cir. 2022)
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Plaintiffs, one of whom is a former Montana State Senator, operate a website that tracks the voting records of Republican state legislators in Montana. Based on the travel expenses Plaintiffs incurred in giving presentations about the website, Montana’s Commissioner of Political Practices determined that Plaintiffs had formed a “political committee” under Montana law, subject to numerous reporting obligations.
Montana law broadly defines a “political committee,” in relevant part, as “a combination of two or more individuals . . . who receives a contribution or makes an expenditure” to “support or oppose” a candidate or a ballot issue. An expenditure of $250 or less does not create a political committee. Nor will expenditures that qualify as “de minimis acts,” which do not count towards the $250 threshold.
The Ninth Circuit reversed the district court’s summary judgment for Montana state defendants and held that Montana Administrative Rule 44.11603, under which Plaintiffs were required by the Montana Commission of Political Practices to register as a political action committee, is unconstitutionally vague as applied to Plaintiffs.
The court held that Montana’s administrative scheme did not give Plaintiffs fair notice that when they traveled around Big Sky Country without pay to give presentations, their purchases of fast food, fuel, and lodging at a roadside motel were not considered de minimis expenses associated with volunteer services. The court wrote that nothing in Montana law suggests that only those persons providing volunteer services or efforts within an organizational structure of a group are exempted from a political committee designation.
Court Description: Civil Rights The panel reversed the district court’s summary judgment for Montana state defendants and held that Montana Administrative Rule 44.11603, under which plaintiffs were required by the Montana Commission of Political Practices to register as a political action committee, is unconstitutionally vague as applied to plaintiffs. Plaintiffs, Ed Butcher, a former Montana State Senator, and Lonny Bergstrom, operate a website that tracks the voting records of Republican state legislators in Montana. Based on the travel expenses plaintiffs incurred in giving presentations about the website to Republican groups, Montana’s Commissioner of Political Practices determined that Butcher and Bergstrom had formed a “political committee” under Montana law, subject to numerous reporting obligations. Montana law broadly defines a “political committee,” in relevant part, as “a combination of two or more individuals . . . who receives a contribution or makes an expenditure” to “support or oppose” a candidate or a ballot issue. An expenditure of $250 or less does not create a political committee. Nor will expenditures that qualify as “de BUTCHER V. KNUDSEN 3 minimis acts,” which do not count towards the $250 threshold. Montana Administrative Rule 44.11.603 sets forth guidance as to what constitutes a de minimis act, including exempt volunteer services or efforts. The panel held that Montana’s administrative scheme did not give plaintiffs fair notice that when they traveled around Big Sky Country without pay to give presentations, their purchases of fast food, fuel, and lodging at a roadside motel were not considered de minimis expenses associated with volunteer services. Although plaintiffs acknowledged they occasionally advocated for particular candidates, from the standpoint of a reasonable person, that conduct was fully consistent with both the term “volunteer” and Montana’s de minimis acts exemption. Nothing in Montana law suggests that only those persons providing volunteer services or efforts within an organizational structure of a group are exempted from a political committee designation. Dissenting, Judge Fletcher stated that plaintiffs were not political naifs. They were sophisticated political actors. They acted in a concerted and sustained manner to bring accurate and relevant political information to interested political groups. In short, they engaged in valuable and protected First Amendment activity. But they did not do so as “volunteers” within the meaning of Montana election law. Rather, they did so as a “political committee.” 4 BUTCHER V. KNUDSEN
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