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In 2014, the Billings-based Conservative Majority PAC sent this mailer attacking then-state Rep. Jeff Welborn, R-Dillon, in the contested primary in House District 72. Welborn currently serves Senate District 36.

A state legislator is trying to clarify what kind of information can go on the campaign flyers sure to fill mailboxes across Montana during the 2020 election cycle.

House Bill 139, introduced by Rep. Kimberly Dudik, a Democrat from Missoula, would require printed election material referencing another candidate’s voting record to provide specific bill numbers, the year of the vote and titles of bills or resolutions. References to another candidate’s statements would require the date and location the statement was made.

“This doesn’t allow lies anymore to be made or mischaracterizations,” Dudik said. “There’s been many of us in the Legislature who have been attacked by those either in a general or primary.” She also claimed the bill would “do away” with the ability of dark money to sway Montana’s elections. Dudik said the bill would also apply to online election materials.

It's a common tactic to use a candidate's past votes, sometimes taken out of context, to help sway the electorate. The Legislature has previously enacted requirements like those Dudik proposes, but they've been struck down in court over constitutional issues. Dudik's bill was also flagged for First Amendment concerns by attorney reviewers for the Legislative Services Division.

However, Dudik told the committee Thursday that the bill properly navigates a “road map” provided by previous court decisions.

“The alternative is to do nothing and to allow things to continue as they have been,” Dudik told the House State Administration Committee on Thursday. “I think that the citizens we represent, nobody has ever told me they want more untruthfulness in the city, state and community campaigns. I think all of your constituents probably feel the same way.”

James Brown, a Helena attorney who has represented American Tradition Partnership in cases challenging Montana's campaign finance laws, spoke in opposition to the bill Thursday. He said the bill, if passed, would be challenged like previous laws.

“I would advise you that campaign finance laws are the exception to the First Amendment, the First Amendment is not the exception to campaign finance laws, and that’s how this bill reads,” said Brown. He told the committee he worked in litigation of the 2012 case of Lair v. Murry, in which part of the language Dudik’s bill seeks to replace was ruled “unconstitutionally vague” in U.S. District Court.

“What you’re requiring is people who want to engage in the political process, which is one of the most fundamental protections that we afford our citizens in this country,” Brown said, “you’re requiring them to engage in certain speech before they can participate in the campaign process.”

Dudik told the committee that her bill is “narrowly tailored” to satisfy previous legal challenges, including that of compelling speech.

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“The difference is that, as I said before, unfortunately we did not get it right the first times,” Dudik said. “And so this time we have the road map of what is required, what the courts have said, and that’s what we’ve done.”

A note attached to the bill mentions the potential for ensuing legal fees given the state’s three defenses since 2012 of language regulating election materials. Jaime MacNaughton, legal counsel for the Commissioner of Political Practices, told the committee that those three cases cost the state Attorney General's office more than $125,000.

Rep. Denise Hayman, a Democrat from Bozeman, asked Dudik if the bill as presented Wednesday encompassed digital election materials as well as printed. Dudik replied that she intended the bill to do so even though it only mentions “printed” material explicitly, but said she will consult with the bill’s drafter to be certain.

The fiscal notes of the bill claim that the Commission of Political Practices can carry out the bill’s provisions at current staffing levels, thus precluding general fund expenditures.

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