Roberts v. MSSA
The Montana Shooting Sports Association state political action
and the Montana Commissioner of Political Practices (CoPP)
the "Missing Staple" case
CoPP wants MSSA to pay fines of
$28,000 over a missing staple
In 2014, MSSA's state PAC sent out postcards in support of some
candidates for the Legislature, before the June Primary Election.
In 2016, candidate Don Roberts filed a Complaint ("Roberts v.
MSSA") with the Commissioner of Political Practices, alleging
that MSSA PAC had made certain errors in reporting its financial
activity in relation to the 2014 Primary. In 2016,
Commissioner Motl released his Decision
which contained errors of fact, and in which the Commissioner
ultimately asserted that MSSA had violated Montana campaign laws in
1) That MSSA PAC had not provided CoPP with required copies of
its reports to the Federal Elections Commission for its federal PAC
(a different entity); and
2) That MSSA had not attached the provided list of candidates
affected by its 2014 postcard mailings to the correct form filed
Since the Commissioner's Decision in 2016, CoPP has conceded that
MSSA PAC did provide CoPP with copies of its FEC filings for MSSA's
federal PAC (See *1, below). Since the Commissioner's 2016
Decision, there has been considerable interchange between MSSA and
CoPP, as CoPP has attempted to bully MSSA into admitting that MSSA
broke the law and to bully MSSA into paying a fat fine (CoPP calls
it a "settlement").
Throughout this process, CoPP has refused to correct the public
record with information that tends to exonerate MSSA and MSSA PAC,
including, for example, CoPP's admission that MSSA had provided CoPP
with the requested FEC reports even before the initial Complaint was
filed in 2016 and before the Commissioner's Decision was published
later in 2016.
Now (06/03/18), some Online media are reporting that the CoPP has
filed a lawsuit against MSSA PAC in state District Court in Helena,
asking the Court to levy fines totaling $28,000 against MSSA
PAC. No other information about this possible lawsuit is
available as of this writing.
Because CoPP has refused to correct its mistaken facts, refused to
correct its mistaken allegations, and refused to correct its
mistaken public record, MSSA takes this opportunity to set the
record straight by using its First Amendment-reserved right to
publish a correct set of facts concerning Roberts v. MSSA.
Perhaps the best explanation of existing facts in this case is
contained in a letter to CoPP from MSSA dated January 28,
2018. Here is the text of that letter:
Original printed on MSSA letterhead and mailed via U.S. Mail
January 28, 2018
Chief Legal Counsel for the
Office of the Commissioner of Political Practices
P. O. Box 202401
Helena, Montana 59620-2401
Re: Roberts v. MSSA
Dear Ms. MacNaughton,
This matter is overdue to be resolved. We ask that it be
dismissed. Please allow me to recap the history of this matter
On March 28, 2016, Mr. Roberts filed a Complaint with the
CoPP. The Complaint alleged that the Montana Shooting Sports
Association (MSSA) had violated various campaign finance laws.
We are unaware of any other complaints that have been filed that may
relate to this matter. After considering the merits of this
lone Complaint, on August 16, 2016 the Commissioner rendered and
published a Decision regarding the Complaint. In that
Decision, the Commissioner held that there were two deficiencies in
how MSSA had conducted its affairs vis-a-vis Montana campaign
finance laws. These two deficiencies were:
1. That MSSA had not provided the CoPP with copies of reports
it had filed with the Federal Elections Commission (FEC) (Finding of
Fact No. 10); and
2. That MSSA had not adequately supplied CoPP with a list of
candidates about whom MSSA had sent postcards to voters (Sufficiency
Finding No. 2).
There were no other deficiencies of MSSA's conduct found in the
Commissioner's Decision and response to this Complaint.
Concerning deficiency No. 1 above, MSSA has since provided CoPP with
evidence that the Commissioner's Finding of Fact No. 10 was
incorrect, and that MSSA had provided CoPP with all of the required
FEC reports. The CoPP investigation simply failed to discover
that MSSA had actually provided the FEC reports, thus CoPP's
error. CoPP has subsequently conceded this point, so the
alleged MSSA failure to provide FEC reports is now moot.
Concerning deficiency No. 2 above, this issue logically divides into
three parts. Those three parts are:
a. Whether or not MSSA was required to provide a list of
candidates who were not named on mailed postcards but who may have
been affected because they were opposing candidates who were
mentioned only generically as opponents;
b. Whether or not MSSA provided a list of candidates that were
named on the postcards, as required by law; and
c. Whether or not MSSA attached a provided list of candidates
to its C-2, Statement of Organization.
Concerning issue a. above, the Commissioner concedes on Page 10 of
his Decision that MSSA did provide CoPP with a list of candidates
named on the postcards MSSA mailed. About this, the
Commissioner says in his Decision, "To its credit, the MSSAMT
expenditure disclosed in FOF No. 14 is more complete and therefore
distinguishes itself from the disclosures described in the Decisions
listed in Footnote 13."
Further, about the question of unnamed candidates being required to
be identified in CoPP reports, the Commissioner concludes on Page 12
of his Decision that before the Roberts v. MSSA Complaint
and this Decision there was no interpretation of the law requiring
political action committees to report the names of unnamed
candidates. The Commissioner clarifies in this Decision that
requiring reporting of names of unnamed candidates is a new
interpretation and will be applied prospectively, but not for this
Specifically, the Commissioner says on Page 12 of his Decision,
"Having agreed with Candidate Roberts as to the law, the
Commissioner, however, declines to find MSSAMT in a campaign
practice violation for its actions in this matter. The COPP
interpretation of statute set out above was not made until this
decision. The Commissioner will apply this interpretation
So, there is no deficiency associated with prong a. of this
Concerning b. above, the Commissioner concedes on Page 10 of his
Decision that MSSA did provide CoPP with a list of candidates named
on the postcards MSSA mailed. About this, the Commissioner
says in his Decision, "To its credit, the MSSAMT expenditure
disclosed in FOF No. 14 is more complete and therefore distinguishes
itself from the disclosures described in the Decisions listed in
So, there can be no deficiency associated with prong b. of this
Concerning c. above, the Commissioner's Decision admits that MSSA's
C-2, C-7, and the provided list of named candidates were all filed
and received by the CoPP in a timely manner and on June 2,
2014. The only remaining question is whether or not the
received list was attached to and associated with the C-2.
MSSA has testified that the C-2, the C-7, and the list of named
candidates were all mailed to CoPP in one envelope, which is
consistent with and explains why the Commissioner's Decision admits
they were all properly and timely filed on June 2, 2014.
That leaves open the question of whether the supplied list was
attached to the C-2 or the C-7. MSSA has testified that the
supplied list was unattached to either and was simply in the
envelope with the C-2 and the C-7. If the list became attached
to the C-7, rather than to the C-2 as it was supposed to be
(according to CoPP), then it was the CoPP that attached the list to
the wrong CoPP form.
About this, the Commissioner's Decision says on Page 10 and 11,
"MSSAMT's approach to its C-2 reporting is perplexing.
MSSAMT's Statement of Organization [C-2] was filed on June 2, 2014,
the same day that MSSAMT filed a C-7 report listing [included,
separate, unattached list] the 18 candidates on which it made
expenditures. (FOF No. 7, including FN 2.)"
So, the Commissioner's Decision admits that all required forms and
lists were supplied by MSSA, and were received by CoPP in a timely
fashion on June 2, 2018. The only remaining basis for any
alleged deficiency is the assertion that the required list was
attached to the C-7 when it should have been attached to the C-2.
MSSA argues that even if the list of candidates were not attached to
the C-2, but were simply contained in the same envelope as the C-2
and C-7, that this offense, if any, would be de minimis and
would not warrant any CoPP action against MSSA (N.B.: Canyon
Ferry Road Baptist Church of East Helena v. Unsworth).
MSSA further argues that it was actually CoPP which attached the
provided list to the C-7, rather than to the C-2 that CoPP believes
it should have been attached to. That is, CoPP is pursuing
enforcement action against MSSA because an alleged misplaced staple
or paperclip, again de minimis, and likely one that CoPP
If CoPP can provide evidence of any other existing complaints that
raise any additional issues, MSSA is willing to respond to those
separately from Roberts v. MSSA. If CoPP provides
evidence of any other deficiencies directly declared in (not
inferred from) the Commissioner's Decision in Roberts v. MSSA,
MSSA is willing to respond to those. If CoPP can produce
evidence that it was MSSA and not CoPP that attached the provided
list to the wrong C form, MSSA is willing to consider that.
Please, show us the evidence.
Otherwise, CoPP is in the position of stigmatizing MSSA publicly as
a lawbreaker and bad actor, and threatening MSSA with thousands of
dollars of expense for fines and court costs, all because of one
misplaced staple, a staple that was likely misplaced by CoPP itself.
Again, MSSA requests that CoPP dismiss this matter with prejudice
and cease all further enforcement action in Roberts v. MSSA.
Gary Marbut, President
Montana Shooting Sports Association
CoPP wants MSSA to pay a fine of $28,000 because of a missing
staple. CoPP admits that MSSA provided CoPP with the allegedly
missing FEC reports (*1). CoPP admits MSSA provided it with
the required forms C-2, C-7, and with the required list of affected
candidates (Decision). CoPP admits it received these forms and
the list on the same day (Decision). These forms and the list
were all in one envelope. The bottom line is, CoPP wants MSSA
to pay $28,000 and admit to being an outlaw because the provided
list was not attached to the form C-2 instead of the form C-7.
This then is the "Missing Staple Effect", and why CoPP wants the
Court to force MSSA to pay $28,000 for a missing staple.
Therefore, this entire affair ends up being more of a comment on the
nature and actions of CoPP than on the law-abiding character and
actions of MSSA PAC. $28,000 demand for a missing staple!
*1 Letter from CoPP, 06/13/17: "In response to the COPP's
request for additional information regarding MSSA State PAC's 2012
and 2014 opening and closing report balances, on December 4, 2015,
Mr. Marbut emailed the COPP 37 copies of MSSA's Federal PAC's
Federal Election Commission's reports and disclosures. This
statement of fact contradicts Commissioner Motl's finding of fact
number 10 in the Sufficiency Decision, and is corrected through this
(Note re *1: CoPP admitted here almost a year after
Commissioner's Motl's adverse Decision that MSSA had actually
provided CoPP with the requested FEC reports, and had provided those
over a year before the Roberts v. MSSA Complaint was filed
and a year and a half before Commissioner Motl's Decision was
published. That CoPP failed to discover these previously-filed
MSSA PAC FEC reports in its in-house CoPP records is CoPP's error.)
(Note 2 re *1: MSSA had argued that all of the requested FEC
reports are available on the FEC Website, 24/7, with only a few
mouse clicks, to anyone in the World with an Internet connection, so
it was unnecessary to provide copies of these reports to CoPP.
At the time, Copp had no method to make these reports available
Online. CoPP argued that for public disclosure purposes it was
necessary for CoPP to print copies of these FEC reports and put them
in a file cabinet so that if someone wished to travel from Eureka or
Ekalaka and visit CoPP offices on a week day, during government
office hours, these reports would be available for public
inspection. So, MSSA provided electronic copies of 37
quarterly FEC reports to CoPP in December of 2015. Then,
despite CoPP's claim of need for these FEC reports to satisfy public
disclosure, CoPP could not find these reports within its own file
system when it investigated MSSA PAC for Roberts v. MSSA.
Because CoPP could not locate its own copies of these documents in
its own files, documents it held to be critical for proper public
disclosure, Commissioner Motl found MSSA PAC to be in violation of