Montana governor rescinds executive order compelling disclosure of political spending

By

Jerrick Adams

Montana governor rescinds executive order compelling disclosure of political spending

On Feb. 12, Montana Gov. Greg Gianforte (R) issued Executive Order No. 3-2021, rescinding former governor Steve Bullock’s (D) directive requiring entities doing business with the state to disclose their donations to organizations engaged in political spending. 

What Bullock’s order required

Bullock issued his order, Executive Order No. 15-2018, on June 8, 2018. It established that “it is the policy of the executive branch that entities seeking to do business with the State of Montana must disclose contributions or expenditures they have made in elections.” 

Specifically, Bullock’s order required any business bidding for state government contracts valued at $25,000 or more for services or $50,000 or more for goods disclose all “covered expenditures” made in the past two years. A “covered expenditure” was defined as “a contribution, expenditure, or transfer made by the contracting entity, any of its parent entities, or any affiliates or subsidiaries” on behalf of a political candidate, a political party, or a party committee. It also included contributions to “another entity, regardless of the entity’s tax status, that pays for an electioneering communication, or that makes contributions, transfers, or expenditures to another entity, regardless of its tax status, that pays for electioneering communications.” 

What happened next   

On Aug. 28, 2019, the Illinois Opportunity Project, a 501(c)4 group that engages in issue advocacy, filed suit against Bullock in the U.S. District Court for the District of Montana. The group alleged Bullock’s order violated its First Amendment rights “by requiring disclosure of donations, ending the privacy of speech-oriented association.” The group asked that the court declare Bullock’s order unconstitutional and enjoin its enforcement.

On Aug. 31, 2020, Judge Charles Lovell ruled against the Illinois Opportunity Project, finding that the group lacked standing to bring its claim for relief. Lovell, a Ronald Reagan (R) appointee,  granted the state’s motion for summary judgment. 

The Illinois Opportunity Project appealed Lovell’s decision to the U.S. Court of Appeals for the Ninth Circuit.

Meanwhile, on Nov. 3, 2020, Gianforte won the governorship, defeating Democrat Mike Cooney 54.4%-41.6% (Libertarian Lyman Bishop won 4.0% of the vote). Bullock was term-limited and ineligible to run for re-election.

What Gianforte’s order did, and what comes next   

Gianforte rescinded Bullock’s order. Gianforte said Bullock had exceeded his authority in issuing the order because “it is the province of the legislature to regulate election-related disclosures.” Gianforte also referenced the allegations made by the Illinois Opportunity Project in its lawsuit against Bullock.

Following Gianforte’s order, the Illinois Opportunity Project voluntarily withdrew its appeal of the district court’s ruling, effectively concluding the matter. 

What we’re reading

The big picture

Number of relevant bills by state: We’re currently tracking 30 pieces of legislation dealing with donor disclosure. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status: 

Number of relevant bills by partisan status of sponsor(s): 

Recent legislative actions

For complete information on all of the bills we are tracking, click here. 

  • Nebraska LB8: This bill would change the statutory definition of an “independent expenditure.” It would also alter reporting requirements for independent expenditures and electioneering communications.
    • Democratic sponsorship.
    • Government, Military, and Veterans Affair Committee hearing scheduled for March 4.
  • Rhode Island H5422: This bill would require any nonprofit that provides transportation, housing, meals, or other amenities to elected officers or candidates for elective office to report those actions as donations under the state’s campaign finance laws.
    • Republican sponsorship.
    • House State Government and Elections Committee hearing scheduled for March 1.
  • South Dakota HB1079: This bill would prohibit executive agencies and officials from requiring nonprofits to make disclosures beyond those required under state and federal law.
    • Republican sponsorship.
    • Delivered to the governor on Feb. 25 after clearing both the House and the Senate.
  • South Dakota SB103: This bill would prohibit public agencies from requiring any person or nonprofit to provide identifying information about a nonprofit’s donors. It would also prohibit the disclosure of any such information currently in the possession of a public agency.
    • Republican sponsorship.
    • House State Affairs Committee hearing scheduled for March 1.
  • Tennessee HB0159: This bill would prohibit a public agency from disclosing identifying information about a nonprofit’s donors.
    • Republican sponsorship.
    • Assigned to the Civil Justice Subcommittee on Feb. 24.

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