Last year, Gov. Steve Bullock's office quietly helped rewrite Montana’s political rule book -- contributing edits, reviewing drafts and nixing proposed changes to controversial regulations meant to implement the state's divisive Disclose Act.
Hundreds of pages of correspondence obtained through a records request filed by the Independent Record detail two Bullock staffers' intimate involvement in the fraught rule-making process that followed the act's passage in April 2015.
Only one of those staffers, chief legal counsel Andy Huff, was named to a 10-member public rule-making committee formed by Commissioner of Political Practices Jonathan Motl, the governor's appointee tasked with drawing up regulations to implement the act, which requires disclosure of dollars spent by anonymous “dark money” groups.
But emails show another staffer, Bullock senior policy adviser Jim Molloy, also helped Motl craft key administrative rules, including some governing what qualifies as a reportable election activity and how those activities must be disclosed.
Regulations the pair worked on went into effect Jan. 19, despite vocal opposition from critics -- both Republican and Democrat, inside and outside Motl’s office -- who feared elements of the provisions were "unconstitutionally broad" and could invite legal challenges from candidates and political committees.
Finalization of the rules also came amid growing criticism aimed at Motl, a former nonprofit lobbyist who critics have called a "partisan hack" engaged in a "witch hunt” aimed at Republican office seekers.
Given the questions raised about Motl’s motives, multiple lobbyists and nonprofit political advocates contacted by the Independent Record said they were concerned by emails detailing Bullock staffers’ involvement in last year's protracted rule-making process, though none said they were surprised.
At least one suspects the collaboration between Bullock and Motl’s offices could, ironically enough, amount to a violation of their own campaign rules.
“Incidentally, to the extent that some of these regulatory definitions are so preposterously open-ended and impact the definitions of ‘coordination’ and political ‘contributions,’ one could argue with a straight face that the commissioner’s coordination with Governor Bullock on these regulations results in a campaign contribution (that is potentially excessive, prohibited, and/or not lawfully disclosed) from Motl to Governor Bullock,” attorney Eric Wang, a senior fellow at the right-leaning Center for Competitive Politics, wrote in an email Feb. 10.
An independent guy
Motl, who has been called “the most important person in Montana politics,” said there are no circumstances under which his coordination with Bullock’s office would qualify as a reportable election activity.
He had a harder time explaining how and why Bullock’s top policy adviser wound up helping to rewrite the state’s campaign finance rules.
Motl recalled Molloy was only looped into the drafting process after a bruising legislative committee review of the proposed regulations and only at the request of Al Smith, executive director of the Montana Trial Lawyers Association and a foremost critic of several draft rules.
That's not the way Smith remembers it.
He said he thought Molloy was involved in the rule-making process from the get-go.
“I wish we had that kind of sway, where we could tell people who to talk to,” Smith added.
Molloy said he was first "engaged" in the rule-making process "by the governor, on behalf of the governor," to figure out how to get the rules past an interim legislative committee granted oversight of the process.
He sidestepped questions about why that process required the direct involvement of another governor's office staffer not previously appointed to Motl's public rule-making committee.
"I think you're creating a hierarchy here that really doesn't reflect reality," Molloy told a reporter. "The commissioner's doing what he's doing. ... He's an independent guy."
Motl’s team first drafted a new, highly controversial definition of what constitutes an “electioneering communication” in June.
Molloy made his first appearance in the rule-making process a month later, when Bullock attorney Huff asked him to review proposed changes to a pair of verbs included in that definition.
An explanatory paragraph from Huff addressed to Molloy notes: “This approach is different from the reporting category we were thinking about, but I think it does the job and creates less bureaucracy.”
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Only an hour earlier, Huff copied Molloy on a forwarded email that contained several revisions to the definition proposed by Smith. Those recommendations were not incorporated into final rules adopted last month.
Molloy never sent a reply to the Smith email, nor to a note -- subject line: “Rules hearing” -- Motl sent a week later.
In August, just three months ahead of a hearing seeking legislative approval for the rules, Molloy was called upon to review another controversial rewrite of language defining what constitutes a campaign contribution.
Critics of the new definition have said it departs from the meaning of the term as laid out in the Disclose Act.
A terse note from Jaime MacNaughton, general legal counsel for the commissioner of political practices, accompanying the draft contribution rule sent to Molloy reads: “Jon (Motl) asked that I send this to you.”
Granted so much access to the draft regulations and those that made them, opponents of the new rules found it hard to believe that the governor, and his politics, didn’t play an outsized role in the rule-making process.
“It does not surprise me that Mr. Motl and Governor Bullock worked closely on these regulations,” said Brent Mead, executive director of the Montana Policy Institute, a conservative think tank. “It also does not surprise me that it has taken a while for this information to come out.
“This administration has a habit of keeping the public in the dark. … Good governance should mean transparency for government and privacy for its citizens. Unfortunately, what this endeavor is really about is allowing those in power to 'out' individuals with whom they disagree.”
Ripe for challenges
Commissioner’s office staffers expressed misgivings of their own over the draft rules.
A May email from program supervisor Mary Baker highlighted her “constitutional concerns” with provisions requiring all potential incidental and independent political committees to file additional reporting paperwork, noting the additional disclosures “could be considered a burden and will be ripe for challenges.”
MacNaughton, too, seemed to sympathize with critics’ wariness over Montana’s broadened definition of coordinated campaign expenses, noting in a September email that she thought it was a good idea to delete language in the regulation that could run afoul of precedent set in a 2001 U.S. Supreme Court ruling.
Those warnings went largely unheeded by the rest of the rules committee, whose final regulations include a much expanded definition of “coordination” and tighter disclosure requirements on nonprofits and other membership groups who might engage in “reportable election activity.”
After countless revisions and months of public hearings, it took a legislative poll to answer the most persistent question dogging the draft regulations: Are they consistent with the spirit of the Disclose Act?
A majority of polled lawmakers said they were, tamping down objections from the Montana Republican Party and nearly a dozen other groups who feared the rules went well beyond the clarifications and administrative guidance sought by the act.
That poll, forced by Republican lawmakers who twice sought to block the rules, came only after opponents failed to defeat the regulations at a November meeting of the State Administration and Veterans Affairs Committee, which gave final approval to the rules.
Some critics, including Smith and Montana Democratic Party attorney Mike Meloy, said they're mostly satisfied with the provisions now on the books.
Motl said that's evidence the process worked.
He said the rules weren’t unduly influenced by the Democratic governor that appointed him and would not serve to favor candidates from one party or another.
In Motl’s view, Bullock’s role in the rule-making process was precisely as large as it should have been, given that he sponsored the enabling legislation.
Not everyone seems convinced.
“In many other jurisdictions, the authority to regulate political speech is vested in bipartisan agencies, so as to guard against this type of improper regulatory motivation,” said attorney Wang, “but Montana’s laws make the Commissioner a virtual one-man Czar of political speech.”
Editor's note -- This story has been updated to correct information about Jonathan Motl's work history.