How Big Sky Country became the front line in a long battle over dark money

Jaime MacNaughton’s future in law can be traced back to the time when she was locked in the trunk of a car, sweating inside a garbage bag. She was doing a scene for a TV pilot that ended up going nowhere. It marked the nadir of the theater major’s quest to make it big in Los Angeles. “Obviously, that never panned out,” she says.

Meanwhile, her second job – the one she had gotten just to pay the bills – was taking off. After starting as a file clerk at an immigration law firm, she’d been promoted to run the department that handled green cards, helping everyone from auto mechanics to Hollywood actors get their ticket to a new life in the United States. She was hooked. 

Fast-forward 15 years and Ms. MacNaughton, now a lawyer, is a key player in enforcing Montana’s strict laws against mega-spending in politics. From a humble rambler in the shadow of the grand state capitol building in Helena, MacNaughton keeps track of campaign finance violations in tiny, exquisite handwriting on a dry-erase board and digs through boxes of original documents next door to help prepare two cases under consideration by the US Supreme Court. 

Seventy miles to the south, in the brick historical district of Butte, Mont., Anita Milanovich is marshaling arguments for her side of those cases. She is fighting against what she sees as Montana’s unconstitutional limits on an important form of political speech: spending money to support candidates and promote political causes. 

One floor up from the chandelier-filled lobby of the old Finlen hotel, she sits alone in a spacious office with views out toward the undulating landscape once scraped and scalloped by copper barons. Ms. Milanovich, who recently relocated here from Bozeman, Mont., has almost finished unpacking all her framed honors and her diploma from Valparaiso University Law School in Indiana, where she was a member of the conservative Federalist Society.

These two women are central figures in an epic fight in Montana over money in politics – one that may well set the tone for the rest of the nation on an issue crucial to the functioning of American democracy.

MacNaughton is the sole lawyer at the Commissioner of Political Practices (COPP), the state’s unique but perpetually underfunded office tasked with enforcing Montana’s 111 pages, single-spaced, of strict campaign finance laws. 

Milanovich serves as the Montana outpost for the Indiana-based Bopp Law Firm, which is led by the preeminent lawyer fighting campaign finance regulations across the country. It was her boss, James Bopp Jr., who successfully argued the 2010 Citizens United case before the Supreme Court, opening the floodgates for corporate money in politics. Now the firm is pursuing the legal cases against MacNaughton’s office.

COPP and Bopp represent two competing strains of thought in the US about how much money should be spent on political campaigns, who should be allowed to contribute, and whether the public has a right to know who is behind the largess.

Underlying the debate are critical questions about the relative value of each citizen in elections, and if politics – and democracy as a whole – are stronger, healthier, and more effective when political spending is kept in check or allowed to flow freely. Whether the Supreme Court takes up these two Montana campaign finance cases, and how it decides, could dramatically affect the ability of states to regulate political spending.

The total outlay in this fall’s midterm elections is expected to surpass the $3.85 billion spent four years ago, and much of it comes from undisclosed sources – so-called dark money. Amid the growth of unrestricted giving, Montana is taking one of the boldest – or most egregious, depending on one’s perspective – stands in the country for limiting spending and requiring disclosure of the source of contributions.

And the reason for that goes back to those hills outside Milanovich’s office mined for their invaluable metals. 

*** 

On a crisp fall day, a steady procession of veteran politicians streams into Gamer’s Cafe in Butte’s historic downtown for coffee or stacks of pancakes the size of pizzas.

Among them is Evan Barrett, a longtime Democratic operative and former state business development chief with a ponytail poking out of his baseball cap. Mr. Barrett spearheaded the 1975 law that formed COPP. Tucked under his arm is the 1889-1976 Atlas of Montana Elections. “It’s my Bible,” he says.

He doesn’t really seem to need it. After sliding into a vinyl booth, he rattles off so much of that history that the waitress has to come several times to refill his coffee cup.

Montana was ushered into statehood in 1889 via a constitutional convention presided over by William Clark, a businessman from Pennsylvania who came here seeking gold. Clark found not only gold, but silver and a world-class copper lode in Butte, which became known as “the richest hill on earth.” A 34-room Victorian mansion just up the street stands as a testament to the prodigious wealth he accrued.

As the mining corporations became bigger and wealthier, Barrett says, progressives became concerned about their influence, particularly in politics. Clark, one of several men known as the Copper Kings, didn’t bother with penny-ante contributions or underwriting political ads. He bought himself a seat in the US Senate by throwing money at the state legislators, who in those days were responsible for electing senators.

Clark and his agents tossed brown paper bags of cash into legislators’ hotel rooms, purchased ranches, and paid off mortgages and debts. The copper baron later admitted to spending more than $272,000 in bribes for the seat – the equivalent of nearly
$8 million in today’s dollars.

It was blatant bribery – so blatant that it changed the way senatorial elections were conducted in America. Clark’s high-profile corruption was one of several cases that prompted Congress to pass the 17th Amendment, which put the election of senators directly in the hands of the people.

Montana, too, enacted changes.

The misdeeds of copper barons like Clark are often cited as the precipitating reason for the state’s landmark 1912 Corrupt Practices Act, a ballot initiative banning corporate money in politics. But the law was neither unique to Montana nor a cure-all for corporate exploitation.

Proposed amid a national movement led by progressives such as Theodore Roosevelt and Woodrow Wilson to root out corporate corruption in politics, the law was copied verbatim from an Oregon statute. Business interests, however, continued to wield outsize power in the state, which by midcentury was referred to as a corporate colony. But the 1912 law stood for nearly 100 years, until Mr. Bopp came along.

In the landmark case Citizens United v. Federal Election Commission, he persuaded the Supreme Court to allow corporations and labor unions to spend unlimited amounts of money to advocate for or against candidates, arguing it was a form of free speech. As Milanovich explains it, the government should not be in the business of deciding who is allowed to “speak” in support of political candidates or issues, because the First Amendment prohibits Congress from making any law that abridges freedom of speech.

In the majority opinion for the 5-to-4 decision, Justice Anthony Kennedy acknowledged that while corporate spending may result in “influence over or access to elected officials,” it does not amount to corruption.

But many Montanans castigate the 2010 decision. “Citizens United, in my mind, enabled legal bribery,” says Barrett, who calls money the root of all evil in politics. “I personally believe that every citizen has an equivalent value in every election and that money ought to flow in the same way.”

The Citizens United decision called into question laws restricting corporate spending in 24 states, many of which were repealed or struck down. Montana Attorney General Steve Bullock fought to keep his state’s 1912 law intact, going all the way back up to the Supreme Court, with Bopp representing the defendants. The same justices who had supported Citizens United ruled against Mr. Bullock in a one-paragraph opinion just a few months shy of the law’s 100th birthday.

But one key restriction established by Montana progressives was left standing – the tiny office where Jaime MacNaughton now works. 

***

When MacNaughton showed up in 2013, the COPP office had a rap as being slow and toothless. It wasn’t supposed to be that way, says Barrett.

In the wake of Watergate, as states were passing laws aimed at preventing the corrupting influence of money in politics, he was part of a small group assigned to draw up a new campaign finance law.

The intent was not to replace Montana’s 1912 law but to augment it – and, crucially, create a way to enforce it. Barrett pushed hard to put that power in the hands of a single individual rather than establishing a board or commission like so many other states were doing. “If everyone’s in charge, no one’s in charge,” he says.

So Montana entrusted a single commissioner – appointed by the governor but confirmed by the Legislature – to enforce its campaign finance laws. It remains the only state in America with such a structure, and it stands in stark contrast with the Federal Election Commission, which has been deadlocked for years along party lines.

But by 2013, COPP had gone through three commissioners in two years and was facing a massive backlog of complaints that needed to be investigated.

Then lawyer Jonathan Motl arrived, and he hired MacNaughton as his right-hand woman. That marked the first time the office had ever had two lawyers, giving it more firepower. They put the teeth back into the COPP, working through 100 complaints in two years and bringing the docket current for the first time in more than a decade. They also benefited from a bizarre breakthrough in the fight against dark money.

A staffer for Western Tradition Partnership (WTP), an anti-environmental group active in Montana, was driving some sensitive documents back to Colorado in a beat-up Honda Civic when she parked in Denver and the car was stolen. Police found the vehicle, but the boxes were gone.

They showed up in a Colorado meth house and were eventually shipped to the commissioner’s office, where Mr. Motl and MacNaughton pored over them. They concluded, based on internal memos and subsequent research, that conservative Republicans running for Montana’s statehouse had, in violation of state campaign finance laws, been directly assisted by groups such as WTP and National Right to Work, which attacked their more moderate colleagues in primaries. 

Motl and MacNaughton used the files to bring cases against nine GOP lawmakers and candidates, and won or settled all nine cases, the last of which concluded in October.  

Many people, including Montana documentary filmmaker Kimberly Reed in her new film, “Dark Money,” hold up Motl as a hero for preserving the integrity of Montana politics. But critics describe his crusade as a thinly veiled partisan attack on GOP politicians. Milanovich says there was minimal investigation and Motl sued the candidates because it was politically expedient.

“Here in Montana, I do believe that the vagueness in campaign finance rules has been used against conservative Republicans,” says Milanovich, who adds that Motl testified that he is biased against dark money. “If that’s not an agenda, I don’t know what is.”

Motl vigorously denies the charge, noting that the office is nonpartisan. His term expired in 2017 and former Democratic state legislator Jeffrey Mangan is now the commissioner. But Motl’s legacy looms large, in part because his protégé, MacNaughton, is soldiering on.

*** 

The future of Montana’s campaign finance laws may not lie in Helena but in Washington, D.C., with nine robed justices. Bopp Law is urging the Supreme Court to strike down the state’s laws dealing with two chief pillars of post-Watergate campaign finance: limits on how much individuals can give to political campaigns and rules about disclosing contributions. 

Montana has the lowest limits on individual giving in the nation – $180 for candidates running for the state Legislature. Motl, who spearheaded a 1994 ballot initiative that dramatically lowered the individual limits, calls them “the most essential remaining element” of Montana campaign finance law, because they level the playing field for would-be donors.

“If your brother or best friend were running, it’d be within reach to give the maximum ... and that’s the way it should be,” says the former commissioner, his fleece jacket flecked with debris from working on his hobby farm. “That’s true participatory democracy.” It’s not just the elite, he says, who should influence who runs for office or shape how people govern.

But Milanovich says influence is different from bribery or quid pro quo corruption, which in her view would be the only justifications for restricting political spending. “I have serious doubts that $181 would buy a political candidate,” she says.

That’s why Bopp Law and its clients sued COPP in Lair v. Mangan, arguing that Montana’s limits violate the First Amendment right to speech.

Montana’s defense is being handled by the attorney general’s office, but MacNaughton is in frequent contact, bringing her depth of knowledge about campaign finance to help the state build a solid case. The stakes are high not just for Montana but for 37 other states with individual contribution limits.

“The Lair case is particularly interesting ... because they’re challenging basically every contribution limit in the country. So it has potential repercussions way beyond Montana,” says Dale Schowengerdt, solicitor general in the attorney general’s office. 

The second case deals with whether citizens have a right to know who’s behind the glossy fliers that show up in their mailboxes just before elections. Bullock, the former attorney general, thinks they do.

After losing his fight against Citizens United, he came back home, ran for governor, and won. In his second term, amid the revelations of “dark money” influence swirling around groups such as WTP, he was able to muster enough Republican support to push a campaign finance law through the GOP-controlled Legislature. The 2015 Disclose Act requires any group spending money in state elections to reveal its donors. (It doesn’t apply, however, to federal races.)

Milanovich argues that the Disclose Act has a chilling effect on citizens or groups who want to make their voice heard in elections. That, like Lair, is an unconstitutional violation of the First Amendment, she and Bopp argue in Montanans for Community Development v. Mangan.

The case highlights Montana’s role at the forefront of efforts to make campaign contributions more transparent. “Montana is on the leading edge. It’s trying to make sure that voters and citizens know who is paying for politics,” says Michael Malbin, executive director of the Campaign Finance Institute in New York.

Helena is also the home of the National Institute on Money in Politics, a nonprofit that has become the premier group monitoring and collecting data on spending in state elections across the country. Armed with a small group of diligent staffers and powerful computers, the institute has become a valuable resource for media outlets, campaign watchdog groups, political scientists, and even people in foreign countries studying how American democracy works. 

Edwin Bender, a founder of the institute, tells the story of a visiting delegation from Algeria, which at one point asked him, “By what authority do you collect this [information]?” He told them it was all available through open records and offered to come to Algeria to share more of his work.

As they were leaving, one of the Algerians pulled him aside and said, “Thank you very much for the offer, but people who do what you do in our country get shot.”

***

Lair was one of the first Montana cases that MacNaughton and Milanovich worked on.

MacNaughton was two years out of law school and thrilled to be back working for her old boss, Motl. She left her family nearly four hours away in Billings and moved into her mom’s basement in Helena while she found housing and child care. “My husband knew it was my dream job,” she says.

Milanovich, who had developed a love for constitutional law at Calvin College in Grand Rapids, Mich., had been working for Bopp since she graduated from law school eight years earlier. When she moved to Montana in 2012 to be with her now husband, a third-generation Montanan, her boss allowed her to continue working remotely and she took on the Lair case.

MacNaughton still has a polite email she got from Milanovich about the Lair case just as she was settling into her new job at COPP. Milanovich signed off, “Happy Thanksgiving!”

But underneath the civility that they strive to maintain lie vastly different views of American politics and values. Milanovich says campaign finance law has justifiable underpinnings; she, too, doesn’t want to see another bribery scandal like that of copper baron William Clark.

But in her view, what began as a way of monitoring the government and making sure it wasn’t corrupt has veered away from that original purpose and is being used as a political tool.

“Disclosure has become about something more than scrutinizing the government. It has become a means of monitoring Americans, and it has become weaponized,” she says.

MacNaughton, for her part, thinks all Montanans have the right to know who is underwriting the people who run for office and sees herself as carrying out the will of the people. “I wouldn’t be here doing this,” she says, “if I didn’t think that the people of Montana, and the nation at large, deserve to know who is influencing their votes.”

John Adams of the Montana Free Press contributed to this report.

This story has been changed to offer greater clarity on several points.