By Matt Volz
HELENA – An appeals court on Monday upheld a Montana law requiring nonprofit groups to register with the state as political committees if they run any kind of ad that refers to a candidate or ballot issue within 60 days of an election.
The three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that it’s in the state’s interests to have such disclosure requirements, even for groups that run ads that don’t expressly endorse or oppose a candidate, but still aim to indirectly influence voters.
The state law requires any group to register and file disclosures once it spends $250 or more on ads or mailers referring to a candidate, political party or ballot issue within 60 days of an election.
That includes as educational and social-welfare committees registered as nonprofits under section 501(c)4 of U.S. tax law that generally aren’t required to disclose their donors and spending.
The law was passed in 2015 in response to the 2010 Citizens United U.S. Supreme Court decision that allowed corporations to spend unlimited amounts of money on ads in elections if they don’t coordinate campaigns.
The National Association of Gun Rights sued in 2016 to strike down the state law. The 501(c)4 group said it wants to send mailers to voters about public officials who support or oppose the Second Amendment ahead of the 2020 elections, but it did not want to register as a political committee and make the required disclosures to the state.
The group argued unsuccessfully that the U.S. Constitution bars states from requiring that kind of disclosure for informational ads, such as the kind it proposed mailing. The First Amendment only permits states to impose such regulations on “express advocacy” ads—those that directly appeal to voters to cast their votes for or against a specific candidate, attorneys for the gun-rights group said.
The 9th Circuit judges ruled the provisions in the Montana law are similar to those the appeals court previously upheld in Washington state and in Hawaii.
“Montana’s disclosure requirements for political speech that mentions a candidate or ballot initiative in the days leading up to an election reflect the unremarkable reality that such speech—express advocacy or not—is often intended to influence the electorate regarding the upcoming election,” Judge Marsha S. Berzon wrote in the 9th Circuit opinion.
The judges struck down one part of the law that required organizations that register in Montana to designate a treasurer who is a voter in the state.
David Warrington, an attorney for the National Association of Gun Rights, said he was happy that the court ruled in their favor on the treasurer provision, and that a decision hasn’t been made on whether to appeal the rest of the ruling.