The loophole in all campaign finance laws
The First Amendment states, in part, "Congress shall make no law ... abridging ... the right of the people peaceably to assemble[.]" The Supreme Court translates this, in modern English, to the right of association. This clause is the source of the constitutional rights of political parties. It is vigorously enforced.
Campaign finance laws regulate political money and the groups which form to collect and spend it. So if citizens choose to associate with one another, but do not pool their money, these laws do not apply.
Let's say you're a group of Republicans in Montana, and your goal is to defeat Sen. Jon Tester in November. If there are three candidates for the Republican nomination, and two of them can beat Tester, but one of them cannot, you want to inform your fellow Montanans of this situation.
According to my friend, former Rep. Matthew Monforton, that's exactly the situation we find ourselves in today. Either state auditor Matt Rosendale or state senator Al Olszewski could beat Tester, but the third candidate, a wealthy businessman from California, cannot.
Neither Rosendale or Olszewski wants to attack this third candidate. He has the support of interior secretary Ryan Zinke, who is quite popular in Montana. The news media in Montana are too lazy to look into the situation. And a lot of them favor Tester, the Democrat. What's to be done?
If you form a group to publicize this situation by buying advertising, you are subject to the campaign finance laws of Montana, which are an unholy mess. Some of them seem clearly unconstitutional, but they are the law, and until they change, they must be complied with.
So you don't form a group, and you don't collect money. You simply meet, consider various ways to get the message out, and encourage one another to contribute to a newspaper buying a full-page ad. Or you decide you want to run commercials on a radio station.
Those associates who wish to support this financially write a check directly to the newspaper, or to the radio station. If $2,000 is needed, and there are twenty in this informal association, each would need to write a check for $100 made out to the vendor. No middle man. No fee. No commission. No bank account. No address. No website, and no funding appeals. No one makes a nickel, except the vendor whose services you are paying market value for.
An association is not a legal entity. It has no standing in the law. If citizens choose to associate with one another, and nobody makes any money off the deal, no campaign finance law applies. So if you and your associates (aka friends) need that $2,000, and some of you can't afford to spend $100, one of you can decide he'll kick in $500, because he can afford it.
Through my sons, I've made quite a few friends in Montana, and I look forward to seeing them at the end of the month. The Montana primary is on June 7, so the timing is just about right. I think we all ought to peaceably assemble. No one will be asked to donate any money to anything. We're not forming any sort of organization. But if some of them decide to spend their own money on the partial purchase of some advertising, they are free to do so. And if they all decide to pitch in whatever they can afford, we might do some good.
Rep. Monforton served with both Rosendale and Olszewski and likes them both, though he says Rosendale might be a little more conservative. I've never met Rosendale, but I did meet Al Olszewski three years ago when I was in Helena lobbying for the Balanced Budget Amendment Resolution.
Al's an orthopedic surgeon from Kalispell, in northwest Montana. This part of Montana has the highest density of John Birch Society members of any place in the country. They were our opposition in the legislature, and they were a political force to be reckoned with in the Republican Party. They threatened to primary any Republican who voted for the BBA, and enough legislators folded to this pressure to beat us.
At the time, Al was in the House, and their threats didn't faze him a bit. He knew the right thing to do, and he did it. The following year he ran for state Senate and won with 72% of the vote. Birchers bark better than they bite.
I'm not a resident of Montana, so I can't vote. But I do know that Al Olszewski is a stand-up guy.
Fritz Pettyjohn has a bachelor’s degree in political science from U.C. Berkeley, practiced law in Alaska for 44 years, and is a retired Alaska state senator. He blogs at ReaganProject.com.