Montana Administrative Register Notice 44-2-229 No. 23   12/08/2017    
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In the matter of the amendment of ARM 44.11.226, 44.11.227, 44.11.302, and 44.11.605 pertaining to campaign finance reporting, disclosure, and practices








TO: All Concerned Persons


1. On September 8, 2017, the Office of the Commissioner of Political Practices (COPP) published MAR Notice No. 44-2-229 pertaining to the proposed amendment of the above-stated rules at page 1509 of the 2017 Montana Administrative Register, Issue No. 17.


2. On October 13, 2017, the COPP published MAR Notice No. 44-2-229, an amended notice of proposed amendment pertaining to the above-stated rules at page 1875 of the 2017 Montana Administrative Register, Issue No. 19.


3. The COPP has amended the following rules as proposed: ARM 44.11.226, 44.11.227, and 44.11.302.


4. The COPP has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:


44.11.605 ELECTIONEERING COMMUNICATION (1) through (3)(c) remain as proposed.

(d) any other regular or normal communication by a local government or a state agency that includes information about a candidate, ballot issue, or election including sample ballots, and the time, place, or manner information regarding of an upcoming election. Any other communication may be subject to reporting and disclosure as an electioneering communication. For purposes of this rule the terms local government and state agency shall have the same meaning as the definitions of the terms in 2-2-102, MCA.

(4) through (8) remain as proposed.


5. The COPP has thoroughly considered the comments and testimony received. A summary of the comments received and the COPP's responses are as follows:


COMMENT 1: One comment received before the COPP's amended proposal notice stated that the rule did not clarify what a "regular and normal communication" from a local government or state agency is, and suggested we delete the word "informational."


RESPONSE 1: The COPP accepted the comment, and proposed the amended rule language inserting examples of regular and normal communications into the rule, and deleted the word "informational."


COMMENT 2: Two commenters argued that 13-37-206, MCA, specifically exempts school district elections from the reporting and disclosure provisions of Title 13, chapter 37, part 2, MCA.


RESPONSE 2: This comment is rejected because 13-37-206, MCA, exempts from reporting and disclosure certain school district candidates, their campaigns, and political committees who support or oppose a school district ballot issue or candidate. There is no exemption in the statute for political committees making an electioneering communication expenditure that does not support or oppose a school district ballot issue. 


COMMENT 3: Two commenters stated that 2-2-131(3)(b)(ii), MCA authorizes school district trustees and the school superintendent to engage in communications informing or advocating for the passage of ballot issues or levies, and the current rule and amendment violates that statute.


RESPONSE 3: This comment is rejected as the statute provides which activities are "properly incidental" to a school district trustee, superintendent, or designated employee's ability to disseminate resulting information in support of or in opposition to a ballot issue or levy. The rule does not prohibit a school district from making communications; it requires the school district to report and disclose the public money used to fund an electioneering communication which does not support or oppose the ballot issue. 


COMMENT 4: Several commenters pointed out that 2-2-121(3)(a), MCA prohibits the use of "public time, facilities, equipment, supplies, personnel, or funds to solicit support for or opposition to any political committee, the nomination or election of any person to public office, or the passage of a ballot issue unless the use is: (1) authorized by law; or (2) properly incidental...".


RESPONSE 4: This is a comment that does not require acceptance or rejection by the COPP regarding the substance of the rules as proposed. See previous responses.


COMMENT 5: One commenter argued that a political subdivision is separately defined and cannot be a person that forms a political committee required to report and disclose under Title 13, Montana Code Annotated.


RESPONSE 5: The COPP rejects this comment as the definition of person includes "other organization" which includes a "political subdivision", 13-1-101, MCA. Reading the statutes as a whole, there would be no need specifically to exempt special districts from reporting and disclosure if the provisions of Title 13, MCA did not apply to political subdivisions, 13-37-206, MCA.


COMMENT 6: One commenter suggested that county governments printing and mailing ballots, polling place information, or publishing sample ballots would also qualify as electioneering communications.


RESPONSE 6: The COPP rejects this comment as the amended proposed rule specifically exempted these activities from the definition of electioneering communication.


COMMENT 7: One commenter requested that the COPP amend the rule to exclude informational ballot issue communications from the definition of electioneering communication, just as the Secretary of State's Voter's Information Pamphlet is excluded.


RESPONSE 7: The COPP rejects this request, as local government and school districts only incidentally become involved in elections when they propose a ballot issue, and are required to report and disclose expenditures when they spend funds to make an electioneering communication. The SOS Voter Information Pamphlet is a statutorily mandated communication, 13-27-401, MCA.


COMMENT 8: One commenter stated that "communicating the impacts of the passage or failure of a levy or bond question...is the responsibility of every local government." And that the communication is often done by direct mailing to registered voters in the district to have the greatest impact with limited resources. Further that the spending is already public knowledge through public meetings, budgets, review of vendor claims, and public participation in that process.


RESPONSE 8: The COPP agrees that it is important to disclose the impacts of a ballot issue. The COPP rejects the comment, and states that the law and rule as adopted accomplish greater transparency to the people of Montana for money spent in our elections, with attribution as to the source of the information.


COMMENT 9: One commenter proposed deleting "information regarding" from the amended proposed language for readability.


RESPONSE 9: The COPP accepts this recommendation, and amends the statute herein.



/s/ Jaime MacNaughton                 /s/ Jeffrey Mangan             

Jaime MacNaughton                      Jeffrey Mangan

Rule Reviewer                                Commissioner of Political Practices

                                                       Office of the Commissioner of Political Practices


Certified to the Secretary of State November 21, 2017.

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