Ninth Circuit Holds Montana Disclosure Law Unconstitutionally Vague, as Applied

The majority and dissenting opinions in Butcher v. Knudsen are here. From Judge Bress’s opinion for the majority (joined by Judge Ikuta):

Two retirees, Ed Butcher and Lonny Bergstrom, operate a website that tracks the voting records of Republican state legislators in Montana. Several local Republican groups in Montana took an interest in the website and invited Butcher and Bergstrom to speak on their findings. Based on the travel expenses they incurred in giving these presentations— such as for gas, meals at McDonald’s, and a night at a La Quinta Inn—Montana’s Commissioner of Political Practices determined that Butcher and Bergstrom had formed a “political committee” under Montana law. Because Butcher and Bergstrom had neither registered their alleged political committee with the state nor complied with numerous reporting obligations, the Commissioner concluded they were subject to a civil fine and civil prosecution. Butcher and Bergstrom argue, however, that Montana law is impermissibly vague because they lacked fair notice that their conduct would not be treated as “de minimis,” and thus exempt, under Montana Administrative Rule 44.11.603.

We hold that Rule 44.11.603 is unconstitutionally vague as applied to Butcher and Bergstrom.

Judge Fletcher dissented, concluding that Butcher and Bergstrom were a “political committee” required to report under this law, and not “volunteers” excepted from doing so. He concludes:

Butcher and Bergstrom are not political naifs. They are sophisticated political actors. They acted in a concerted and sustained manner to bring accurate and relevant political information to interested political groups. In short, they engaged in valuable and protected First Amendment activity. But they did not do so as “volunteers” within the meaning of Montana election law. Rather, they did so as a “political committee.”

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