April 14, 2016

Jonathan Motl
Commissioner of Political Practices
1209 8th Ave
P.O. Box 202401
Helena, MT 59620-2401

Response to complaint by Don Roberts

Dear Commissioner Motl,

This response to the Complaint will address the Complaint paragraph by paragraph addressing only the “Violations Claimed:” section.  I will not address most inaccuracies contained in the material preceding the “Violations Claimed:” section since there are no claims of violations asserted there.  However, the record should reflect that I find numerous inaccuracies in that material.

Note:  Previously in the document, Complainant Roberts refers to the federal MSSA Political Committee as a “Super PAC.”  The term “Super PAC' is a pejorative term invented and used by journalists hostile to the SCOTUS Citizens United decision and to certain types of federal PACs.  The term “Super PAC” is not used in law and is not a term of legal art.

Plus, what is referred to as a Super PAC by journalists and critics is a different sort of PAC than the MSSA Political Committee is.  A “Super PAC” is a type of PAC formed post-Citizens United to allow two or more corporations to pool funds for independent political expenditures.  PACs that fit that mold are ones that traffic in millions of dollars, such as a “Super PAC” for Microsoft, Amazon, and IBM.

The MSSA Political Committee is not post-Citizens United, but was formed and registered over a decade prior to Citizens United.  The MSSA Political Committee is not a joiner involving any corporations whatsoever, much less multiples of those, and it has never used or accepted any funds from any corporations at all.  None.  Finally, the MSSA Political Committee raises and expends on average about $10,000 per election cycle, basically chicken feed and a very far cry from the actual “Super PACs” which likely handle millions of dollars.

I object to Complainant Roberts' so obvious attempt to skew his Complaint with such incorrectly used and pejorative terminology.

1.  First unnumbered paragraph in “Violations Claimed:” section.

The MSSA PAC reports at the federal level, whose limits provide anonymity to donors who contribute under $200 per calendar year (as presented to the MSSA PAC in a letter from the FEC http://docquery.fec.gov/pdf/094/15330072094/15330072094.pdf and attached as Image 15330072094). MSSA does a number of fundraisers in an ongoing manner and discloses such, as shown in the summary and correlating federal reports. Those fundraisers are reported at the federal level with event contributions listed. There are a number of letters from the FEC questioning the practice of not disclosing the donors individually. MSSA PAC affirms that their contributors are not reaching the federal disclosure levels.

Response:  No violation of specific Montana statute or regulation is claimed in this paragraph.

2.  Second unnumbered paragraph.

Montana law, MCA 13-37-229. Disclosure of contributions received, requires disclosure at much lower levels, $35 per election. A willingness to report at the higher levels but not at the lower levels implies that these contributions would be disclosed under Montana law. Instead a lump sum contribution from the federal PAC is reported to Montana.

Response:  No violation of specific Montana statute or regulation is claimed in this paragraph.  There is no requirement under federal law for a federal PAC to report individual contributions received unless such contribution is $200 or greater.  Although the MSSA Political Committee has upon rare occasion received significant contributions from lone individuals or other PACs, MSSA has always reported those properly to the Federal Elections Commission.  Any interested person is able to learn of those rare donations by accessing the MSSA Political Committee reports to the FEC, reports that are available for free to anyone in the World with a computer and an Internet connection.

Otherwise, the MSSA Political Committee raises funds through bake sale-type events, specifically a precision rifle match held occasionally (monthly during the shooting season, April through October, minus months when fire danger disallows matches).  In those events, participants pay an average of about $3 per ''stage” for the chance to shoot.  Since there are only eight stages offered at the match, and since participants are not allowed to repeat stages (for fairness and match efficiency), the most that any person could pay for the match would still be less than the $35 that would be required for reporting by a state PAC.  Actually, the usual participant will probably pay no more than $20.  This activity ends up being very much like a “pass the hat” type fundraiser, and the total raised is dutifully reported to the FEC, AND to the COPP if such an event happens when a state Political Action Committee is alive and in effect.

3.  Third unnumbered paragraph.

Expenditures are also reported at both levels. The expenditures in the federal report match the expenditures made in the Montana reports by vendor, date and amount. Additional expenditures are made and reported at the federal level when the activity was involving federal races. All of this is reported on FEC Schedule 114: Disbursement for Allocated Federal/Nonfederal Activity and later on Schedule B: Itemized Disbursements. The Commissioner of Political Practices should be concerned with the blatant attempt to use a federal Super PAC to evade Montana law. This alignment of expenditures provides further evidence that this is actually one account and one PAC reporting as two different entities to hide contribution information to Montanans.

Response:  No violation of specific Montana statute or regulation is claimed.  In this paragraph Claimant Roberts asserts that the “Commissioner of Political Practices should be concerned,” but fails to assert any violation of a specific Montana campaign finance law or regulation.  It has never been an issue or contested that there is only one bank account (more about this later), but I have been clear to the COPP for years that there are two political entities, the federal “MSSA Political Committee” and the state “Montana Shooting Sports Association Political Action Committee.”  In all cases every dime of every contribution has been properly and conscientiously reported to the proper agency to which each entity is supposed to report.

4.  Fourth unnumbered paragraph.

The expenditures reported in the Montana reports are lacking required information detail to determine the specific services and what expenditures were made for which candidates. MCA 13-37-230. Disclosure of expenditures made. (2)

Response:  Two specific allegations are made in this paragraph by Complainant Roberts, a) that reports to COPP lacked detail to determine what specific services were hired, and b) what expenditures were made for which candidates.  Although Complainant Roberts speaks in the subsequent paragraph about the Primary Election for 2014, in this paragraph he is silent about for just which period he alleges violations.  To be valid, such a Complaint must be more specific than to simply allege that sometime in history a mistake may have been made.  Since Complainant Roberts narrows his time focus in the next paragraph to the Primary of 2014, I will respond to this paragraph as if it were about the Primary of 2014.

Concerning allegation a) immediately above, in the periodic report Form C-6 I filed with the COPP covering the period of 05/18/2014 to 06/18/2014, an expense is reported as paid to “Budget Instant Print Center” and for a purpose reported on the C-6 as “Print postcards.”  Another expense is reported as paid to “The Directory” and for a purpose reported as “Mail postcards.”  For most people, what “Print postcards” means and what “Mail postcards” means will not be so difficult to understand.

Concerning b) above, in the periodic report Form C-6 I filed with the COPP covering the period of 05/18/2014 to 06/18/2014 is a complete list of all candidates on whose behalf postcards were mailed, and the number of postcards that were mailed in favor of each candidate.  Using high school arithmetic, any person can figure out from that list and the total spent how much was spent on each race.  The specifics of how much was spent in support of each candidate is not required to complete the COPP forms, but is easily calculable by anyone with the least interest.  I can provide that calculation for anyone not capable of it.  What is important here is that nothing is hidden or obscure for anyone with basic math skills.

5.  Fifth unnumbered paragraph.

The report to the state of Montana implies that notification of the mailing in 2014 was provided through email. I believe I was a target of one of these postcards, attached, while not by name by position and was represented negatively. I attest that email notification to me did not occur in violation of MCA 13-35-402. Fair notice period before election.

Response:  COPP staff informed me that it was only required to notify candidates who were named in mailed literature.  MSSA did exactly that.  A postcard mailing was done in support of Cary Smith running for Senate District 27 (and also for 17 other candidates).  That postcard identified Smith by name.  The postcard did NOT identify Complainant Roberts by name.

Complainant Roberts cites 13-35-402.  Subsection 2 says:  “(2) The material must be provided to all other candidates who have filed for the same office AND who are individually identified or mentioned in the advertising, except candidates mentioned in the context of endorsements.” (Emphasis added)  Note the conjunctive “and” logically requires that both conditions must be met for the whole to apply.  Complainant Roberts was not “individually identified or mentioned” in the postcard mailed.  Further, the word “Roberts” does not appear on the postcard.

I sent an email to Candidate Cary Smith notifying him of the mailing, as required by 13-35-402, and including an attached file that was the copy for the postcard being mailed.  The Subject line of that email was:  “Compliance notice, Montana campaign laws.”  That email notification was sent at 3:45 AM on May 29, 2014 and was copied to Mary Baker of COPP.  I retain a copy of that email and postcard if needed, but there should also be a copy in COPP files from my email copy to Mary Baker.

6.  Sixth unnumbered paragraph.

As the contribution totals and expenditures match in the state and federal reports, as do addresses and bank identification, there must be only one bank account. MCA 13-37-205. Campaign depositories requires one primary campaign depository for all contributions and expenditures. Therefore the contributions to the bank account of the Montana PAC should be reported as individual contributions. The treasurer is also in violation that the reports filed in Montana are not true and correct, instead they lump contributions together in the reports in a systemic way to evade disclosure requirements, MCA 13-37-231. Reports to be certified as true and correct.

Response:  Complainant Roberts states that 13-37-205 requires that a political committee must designate one primary depository for depositing contributions and paying expenditures.  That has been done.  Only one depository has been used, and that depository has been duly reported to the regulating agencies involved.  13-37-205 does NOT prohibit two or more political committees from using one depository, but only that a political committee may not use two or more primary depositories.  From his correct premise, Complainant Roberts makes a totally illogical and unsupported leap to say “Therefore ...”  Contributions to the repository of $200 or more were properly reported to the FEC.  And, during any periods when a state political action committee was in effect, contributions of $35 or more were reported to the COPP.

Further, Complainant Roberts accuses me of being in violation of some unspecified something because “they lump contributions together … to evade disclosure requirements ...”  This element of the Complaint fails to assert the violation of any specific statute or regulation.  Notwithstanding that failure, I repeat that I have reported all contributions that are required to the FEC, and all contributions that are required to the COPP during any period when a Montana political committee was in effect.  I assert that I have been most diligent, complete, and correct in all of this reporting.

7.  Seventh unnumbered paragraph.

MSSA PAC at the Montana level closes at the end of each election cycle and reopens upon the next cycle. However, the transactions made in the interim are never reported to the state. Instead, MSSA PAC erroneously reports a "Cash In Bank — Balance from previous report" that does not match the closing report of the previous cycle, again violating MCA 13-37-231.
Additionally, when a PAC in Montana closes there is a requirement to expend and report how the excess contributions were disbursed. MCA 13-37-240.

Response:  This is the first paragraph of the Complaint that may actually have any merit.  The first sentence is correct.  The second sentence is correct also, because there is no state PAC in existence and no report is required.

The third sentence presents a technical conundrum that may actually have some merit.  Although I have been advised by COPP staff to enter the balance of the federal PC account as the opening balance when initiating a state PAC, perhaps it would have been more correct to ignore COPP staff advice and show an opening balance for the state PAC as zero, and then also show a contribution from the federal PC account in the amount of the balance of the federal account.  Although the effect is the same in terms of full disclosure, where the where the money comes from and how much money is involved, perhaps it would be better to show the money as income to the state PAC than as an opening balance in the account.  That is just a matter of which box on the form the same number gets entered into.  I am quite willing to make this correction in the future if it would be more proper.

8.  Eighth unnumbered paragraph.

Surplus campaign funds. This has never occurred. As such, since the bank account has perpetuated, the Montana PAC has as well and those contributions should be reported, the PAC should not be repeatedly opened and closed improperly. As the PAC has continued in existence, multiple required reports are missing, MCA 13-37-225. Reports of contributions and expenditures required.

Response:  No valid claim is stated.  This entire paragraph is based on a careless error by Complainant Roberts.  13-37-240, cited as authority here obviously applies only to candidates, but not to political committees.  This Complaint is about political committees, not about a candidate.  Hopefully Complainant Roberts can become unconfused about the difference between a candidate and a political committee.

9.  Ninth unnumbered paragraph.

This action outlines an intentional will to evade the law of Montana in the past. I also request, particularly given the more strict laws and rules in place now, that the Montana Shooting Sports Association Political Action Committee report in Montana wholly and fully for the 2016 election cycle and into the future. It is highly improper to run a federal Super PAC that primarily operates in Montana legislative races and claim to do so under federal law instead of Montana law.

Response:  This paragraph also states no specific claim of violation of any Montana law or regulation.


There are two points disclosed by this Complaint that bear spedific comment, and possible corrective attention by me and MSSA PC.

1)  As noted in my response to Complainant Roberts' unnumbered paragraph seven, there may be a question about in which box of the reporting form the initial amount should be entered, as a beginning balance or as a donation from a federal PAC.  That confusion can be cured by:

2)  It appears to me that much of Complainant Roberts' confusion and concern comes from the practice that I have used one bank account for both the federal Political Committee, and for the state Political Action Committee, for those periods when a state committee is in existence.  With the benefit of hindsight, I admit that this practice may have created some confusion, although it was done in attempt to keep things simple.  In order to totally eliminate this possible point of confusion in the future, I pledge that if/when I should register a political action committee with the COPP in the future I will open a fresh, new bank account for that committee with a zero balance, and I will report that zero balance to the COPP as the opening balance.

With that assurance, I request that this Complaint be dismissed.

Finally, I find this entire Complaint to be frivolous, and to be a waste of the Commissioner's time and my time.  Plus, because there are statements made by the Complainant that are simply not true or accurate (e.g., use of the term “Super PAC” and the allegation that the statute concerning leftover funds for candidates applies to committees), then the Complainant may have violated Montana laws or regulations about filing a false or misleading document with a public agency.  I invite the Commissioner to consider possible enforcement action against the Complainant for having filed a frivolous, false, or misleading Complaint.

Sincerely yours,

(Electronic signature intended)

/s/ Gary Marbut