August 25, 2016

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

Dear Commissioner Motl,

I have read your recent Decision in the complaint you caption as “Roberts v. MSSA”.

I am concerned that this Decision has the potential to cost some unknown amount of money in fines, associated penalties, and legal fees, and that this Decision already, as well as any further action in regards the Complaint, has damaged the good name and reputation of the Montana Shooting Sports Association and of myself, personally.  I am concerned that this will effectively chill the political speech of an important segment of the Montana public, and of other like-minded groups of interested citizens.

Because of these concerns and the potential consequences of this Decision, it is desirable to seek clarification of some confusing points of the Decision, confusion that may be shared by interested members of the public.  I request that you clarify the points of confusion described below:

I.  Findings of Fact

First, it is possible that you will wish to correct some of the Findings of Fact in the Decision that are incorrect, but upon which the Decision depends for valid conclusions.  Stating correct Findings of Fact would improve the propriety of the Decision and its rationale.  These following corrections are suggested:

A.  Finding of Fact No. 3:  “MSSA filed as a political committee with the Federal Elections Commission ...”  MSSA (the corporation) never filed as a political committee with the Federal Elections Commission (FEC).  The MSSA Board of Directors never considered or authorized such a filing.  I filed with the FEC personally.  I have always been most careful to keep the affairs of MSSA, Inc., separate from the affairs of the federal PAC.

B.  Finding of Fact No. 4:  “MSSA also filed with the COPP ...”  MSSA (the corporation) never filed as a political committee with the COPP.  The MSSA Board of Directors never considered or authorized such a filing.  I filed with the COPP personally.  I have always been most careful to keep the affairs of MSSA, Inc., separate from the affairs of any state PAC.

C.  Finding of Fact No. 10:  “... MSSA filed no copies of its federal PAC reports with the COPP.”  At the request of Mary Baker of COPP, on December 4, 2015, at 3:50 PM, I sent Ms. Baker an email with 37 .pdf files attached, which were copies of MSSA FEC reports that I downloaded from the FEC Website.  These were quarterly MSSA FEC filings going back nearly a decade.  I have this email archived and can resend it upon request.  On December 10, 2015, at 10:12 AM, Ms. Baker responded to my email, acknowledging and thanking me for providing the requested reports.  I also have this email archived and can send it to you upon request.  This provision of FEC reports occurred nine months before the Decision was issued and four months before the Complaint was made.

D. Finding of Fact No. 14 and 15:  These two findings appear to be in direct conflict with each other.  One (No. 14) acknowledges that the required list of affected candidates was provided to COPP, while the other (No. 15) asserts that the list was not provided. Therefore, as a matter of logical deduction one of the Findings of Fact must not be true.  See my comment below (II. B.) about provision of the list of candidates who were affected by the 2014 political activity.

II.  Items of Confusion:

A.  FEC reports.  (From the Decision, Page 5) A.  Failure to Properly Report and Disclose Contributions or Expenditures, 1.  Reporting of Mass Collection at Fund-Raising Events

1.  ARM cited as authority doesn't exist or is improperly cited (see item II. E. below).  How may a reasonable and responsible person comply with the laws and regulations if those are not available for public inspection or are improperly cited?

2.  For there to be a violation, this section depends on the incorrect assumption that MSSA did not provide copies of quarterly FEC reports to COPP.  However, a decade of FEC reports were provided to the COPP, upon COPP request, on 12/4/15 (copy of email and acknowledgment of receipt by COPP both available) (see item I. C. above).  How can there be any violation or deficiency when the required reports were provided, notwithstanding the allegation in the Decision that they were not?

3.  In footnote 6 on Page 6, the Decision explains that FEC reports must be provided to COPP so COPP can make them available to the public on the COPP Website, and so any interested observer need not navigate to the FEC Website to obtain an FEC report.  Conversely, in footnote 9 on Page 7, the Decision admits that COPP does not make FEC reports available on its Website, and that an interested person who wishes to inspect FEC reports filed per-regulation with COPP must travel to the COPP office and inspect printed, paper copies of electronic files stored there.  So, although the Decision makes much of “transparency” and the need to lodge FEC reports with COPP, COPP does not actually facilitate that “transparency” once having received the required FEC reports.  How does it aid state-level “transparency” for COPP to demand submission of FEC reports that are publicly available on the FEC Website, 24/7, to anyone in the World with an Internet connection, only to have COPP file those reports away as paper copies in a file cabinet that may only be physically inspected at one location, in Helena, and only during limited hours on certain days?

4.  In Footnote 8, the Decision implies that the state PAC avoids corporate contributions in order to make contributions to candidates (“... thereby allowing it to also make contributions to candidates.”)  At no time has this state PAC ever asserted, stated, or claimed that it rejects contributions from corporations specifically in order to enable it to make contributions to candidates.  In all the times that this state PAC has been in effect, no contribution to a candidate has ever been made.  It is a matter of internal policy that any funds available can be spent more effectively as independent expenditures than donated to and spent by a candidate. For the Decision to spin or imply that this PAC's rejection of corporate money is done in order to facilitate direct funding of candidates, in the absence of any corroborating information, is disingenuous at best.  How does this incorrect implication in the Decision aid any conclusion of the Decision?

5.  It is my understanding that any regulation requiring (rather than requesting) a state PAC to provide COPP copies of FEC reports for a sibling federal PAC was adopted in 2015.  The events included in the Complaint and under consideration by the Decision all occurred in 2014.  In 2015, when I was made aware of a new requirement to provide copies of FEC reports to COPP (for alleged “transparency” reasons, so public members may travel to the COPP office in Helena and look up paper copies more readily than using a few mouse clicks from home to find the same reports on the FEC Website, 24/7), I diligently provided COPP with a decade of .pdf files of quarterly reports downloaded from the FEC Website (email to Mary Baker on 12/4/15 and her 12/10/15 email reply acknowledgment) (see item I. C. above).  Why was this proper provision of FEC reports to COPP not acknowledged in the Decision, especially in Finding of Fact No. 10:?  Does this flaw cause COPP to have failed in its due diligence to have properly investigated this matter before issuing its derogatory Decision?

6.  Any violation alleged in this section appears to depend on the assumption that FEC reports were not provided to COPP, an incorrect Finding of Fact No. 10.  Since copies of FEC reports were provided to COPP, then no violation can have occurred.  Is this correct, and is the Decision in error for being based on incorrect facts and inadequate due diligence by COPP?

B.  List of candidates.  (from the Decision, Page 9) B.  Failure to File a Proper Statement of Organization

The Decision alleges a failure to file a list of names of affected candidates with its C-2 filing with COPP.

On May 30, 2014, the committee mailed one envelope by First Class Mail to the COPP office.  That envelope contained three items totaling four sheets of paper:

1.  A Form C-2, Statement of Organization, a two-page form which has a block requiring a list of candidates or issues supported or opposed (copy on file).

2.  A Form C-7E, Notice of pre-election expenditures, a one-page form which has no block requiring disclosure of candidates or issues supported or opposed, but only blocks for information about amounts expended and payee (copy on file).

3.  A one-page detailed list of candidates supported by the PAC, including names, district numbers, the number of postcards mailed concerning each candidate, and a candidate-by-candidate acknowledgment that a copy of the postcard had been sent to each named candidate (copy on file).

There were a total of four pieces of paper in this envelope; the two-page C-2, the one-page C-7E, and the one-page list of candidates.  The Decision acknowledges COPP having received this mail.

The Decision asserts that the one-page list of candidates should have been copied and attached separately to each of the C forms included in the single envelope, for a total of five pages sent to COPP, the extra page being an exact duplicate of the list of candidates already included in the envelope.

Since the C-7E does not require a list of candidates, but the C-2 does, the simple explanation is that COPP simply attached the included list of candidates to the wrong form (C-7E) when extracting the four pieces of paper from the envelope.  The Decision acknowledges that the committee supplied the required list of candidates (Finding of Fact No. 14:).  Because of the COPP error in attaching the correctly-provided list to the wrong form, the Decision asserts that the PAC is in violation of Montana law.  As the Decision articulates, that error by COPP is indeed “perplexing.”

If the law actually requires that the list of candidates must be attached to both the C-2 and the C-7E (not stated on the C-7E form), the COPP staff could have very simply cured the omission by making a photocopy of the candidate list provided and attaching the extra copy to the other form.

The implication made by COPP finding that the PAC failed to disclose the names of affected candidates is that the PAC was somehow trying to be sneaky, avoid transparency, avoid compliance with Montana law, or otherwise behave in a disreputable manner.  Given the facts, making such an accusation via implication in the public square comes perilously close to defamation and libel.

The Decision makes much of the obligation for public disclosure.  A serious argument can be made in this example that the committee did all that is necessary or required to aid in that objective and to satisfy the law, but that COPP actually fell short of its responsibility to keep the public informed by failing to attach the provided list of candidates to the correct COPP form.  Do you agree with this assessment?

C.  Proper party.  There seems to be some confusion throughout the Decision about to what entity or to whom the Decision applies and is directed.  Does this apply to the Montana Shooting Sports Association, Inc. a nonprofit corporation registered with the Secretary of State, and a corporation that has never been or formed a political committee?  Or is it about the MSSA Political Committee, a federal PAC I formed a couple of decades ago, and that is not operated by the Montana Shooting Sports Association, Inc. Board of Directors?  The only commonality between these two is that I am President of the corporation and separately the Treasurer (the sole officer) of the Political Committee.  Or, is it about the MSSA Political Action Committee (I admit the similar names are confusing, but that has been corrected – see III. C below), a Montana state political action committee formed under the laws of Montana, but also with no connection to the corporation other than that I am an officer of each, and the only officer of the occasional state political action committee?  Or, is it about me acting in my capacity as an official of one of these particular entities, and if so, which one?  Or, is it about me, personally?  Specifically, what entity or person is subject to this Decision and possible enforcement action?

D.  Decision relation to Complaint.  In this Decision, COPP addresses a specific Complaint filed with COPP by Mr. Roberts.  In the Decision, you seem not to attend specifically to the several sub-complaints as Mr. Roberts states them, and as I did in my Response to the Complaint. Rather, in the Decision, you seem to be following your own path that is difficult to connect with the as-stated and as-itemized subject matter of the Complaint.  You may even be reaching outside the issues raised in the Complaint.  Perhaps you could clear up this confusion by stating which parts of your Decision apply to which paragraphs of the Roberts Complaint, as I did in my Response.  That way, it would be possible to determine how your Decision relates directly to the issues raised in the Complaint.  For a public understanding of your Decision in response to the Complaint, wouldn't that be desirable?

E.  Confusing or incorrect citation of authority.  On Page 5 of the Decision, 1.  Reporting of Mass Collections at Fund-Raising Events, it is difficult to ascertain if this rule was in effect at the time of any alleged impropriety.  According to the Secretary of State's Website, the regulation the decision cites for authority, 44.10.521 ARM, no longer exists.  The footnote 4 of the Decision asserts that 44.10.521 was readopted “in substance at 44.10.406.”  However, The Secretary of State's Website says for 44.10.406 that “This Rule is Reserved” - it doesn't exist, c.f.:

Further, the only version of 44.10.521 that appears to be available is on the COPP Website at:

This version of 44.10.521 says that it depends for authority on 13-37-229(8), MCA.  However, 13-37-229 contains no (8).  See:

This confusing trail of asserted authority appears to not exist, or to be misstated, or to have broken links in citation.  At least it does not afford an average citizen of usual competence a reasonable opportunity to learn about, examine, understand, and comply with what may be required or prohibited under law.  A clearer citation of whatever authority is asserted to apply would aid a Decision reader in understanding what law or regulation is alleged to have been violated at that time.

F.  Improperly assumed change in law.  (From the Decision, Page 11) C.  Notice Laws

Although no deficiency was found in this section of the Decision, it should be noted that the Decision relies on an assumed change of a critical word in the law to arrive at its legal conclusion.  The law(13-35-402(2), M.C.A.) says that notice of campaign effort “must be provided to all other candidates who have filed for the same office and who are individually identified or mentioned in the advertising.” (Emphasis added)  For the legal conclusion of the Decision to be valid, the “and” must be assumed to be “or”, an amendment to the law that has not been made.  'And' is a conjunctive that in logical argument requires that conditions on both sides of the 'and' must be met for effective result.  The Decision alleges that because only one of two conditions was met, the argument is satisfied.  This is an ad hoc rearrangement of the rules of logic and language for this Decision that is unsupportable.  Thus, the legal conclusion made in this section of the Decision is simply wrong.  Do you agree that 'and' is a conjunctive, and logically and semantically requires that conditions on both sides of the word to be true for the argument to be satisfied?

III. Other questions

A.  My Response not posted.  I note that although the initial Complaint and your Decision are both posted on the COPP Website, my Response to the Complaint, dated April 15, 2016, is not posted there.  If full public disclosure and fairness are indeed COPP goals, shouldn't my thoughtful and careful Response be as available for public scrutiny as the initial Complaint?  In the Decision, you speak of easy access by the public to essential information.  If that is so, how is a curious public supposed to find and consider my Response to the Complaint?  If the Complaint is posted in the public space of the COPP Website, at public expense, and my Response is not, how are the Complainant and I being treated equally?  Am I being treated fairly?

B.  Equal application of the law.  Speaking of fairness, do you now intend to insist that every federal PAC that spends any money in Montana must report to COPP the name, address, occupation, and employer of every donor who contributes $35 or more to the federal PAC, which funds may become commingled with money spent in Montana?  Will COPP also require every such federal PAC to file records with COPP of every fundraising event held, anywhere, including how many people attended, a description of all goods sold or services rendered, and how much money was raised through “passing the hat” (or other) at each such event?  Will COPP also require that any such PAC also collect and retain records of name, address, occupation, and employer for every donor who contributes as little as $1 (or any amount) to the PAC so the PAC will know if or when a particular donor may reach the $35 reporting threshold?  If it is reasonable and within the law to hold a small, Montana PAC to this standard, it is only fair to hold to the same standard other giant federal PACs that are spending hundreds of thousands or millions of dollars on political advertising and races in Montana.  Will the COPP actively apply the standard it asserts to all federal PACs operating in Montana?

C. Subsequent remedial action.  Your decision fails to credit good intentions to remedy issues raised in the Complaint as demonstrated by me setting up a new bank account at a different bank for a new state political action committee with a different name (Gun Owners Political Action Committee or “GO-PAC”), a name selected specifically to distinguish it more clearly from the federally-registered political committee and reduce confusion and conflation on those grounds, and by registering that new committee with COPP.  Mention of and credit for this good-faith effort to conduct full compliance and reduce perceived problems, well prior to your Decision release, would make the Decision more complete and perhaps more reasonable.  In fairness to MSSA's public image, wouldn't it be proper to acknowledge that MSSA has gone beyond what is required to clear up the confusion between federal and state PACs by renaming its state PAC (not required by law) and opening a new and separate bank account for its state PAC (not required by law)?

Thank you for your consideration of and response to these comments and concerns.



Gary Marbut