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
http://politicalpractices.mt.gov/content/2recentdecisions/RobertsvMontanaShootingSprotsAssociationPoliticalCommitteeComplaint
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.
Conclusion
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