Roberts v. MSSA

The Montana Shooting Sports Association state political action committee

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 two respects:

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 with CoPP.

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

Jaime MacNaughton
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 for you.

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 Decision. 

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 prospectively."

So, there is no deficiency associated with prong a. of this analysis.

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 Footnote 13."

So, there can be no deficiency associated with prong b. of this analysis.

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 misplaced.

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 disclosure."

(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 Montana laws.)