Western Tradition Partnership hasn't wasted time making enemies. Incorporated in Colorado in 2008, the organization has since operated as a channel for funds from corporations and individuals who want to influence elections under a cloak of anonymity, assuring its donors that "no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible."
The conservative advocacy group's approach has proven particularly distasteful to the Montana Supreme Court, which two weeks ago chastised Western Tradition Partnership's practices in a strongly worded 5-2 decision upholding Montana's century-old ban on corporate contributions to political candidates.
At one point in the 80-page decision, the lead plaintiff in Western Tradition Partnership v. Attorney General is characterized as a "sham organization." Even dissenting Justice James C. Nelson, whose position would ostensibly put him on WTP's side, noted that his "task is all the more distasteful in light of Western Tradition Partnership's questionable tactics and blatant hypocrisy."
Undaunted, the Denver-based organization upped the ante Jan. 5, announcing its decision to appeal the case to the U.S. Supreme Court. The group contends that the ruling is invalid in the face of Citizens United v. Federal Election Commission, the controversial (and, according to national polls, hugely unpopular) 2010 decision that characterized corporate political expenditures as a form of free speech protected by the First Amendment.
Meanwhile, Western Tradition Partnership continues its multi-pronged attack on Montana's 1912 Corrupt Practices Act. The group is also the lead plaintiff in two other cases, one of which was filed last September under its new name, the American Tradition Partnership. That suit targets Montana disclosure regulations, which serve as a legal impediment to the secretive group's way of doing business.
The state, for its part, has charged the Colorado organization with past violations of its statute, maintaining that Western Tradition Partnership was behind a series of negative campaign fliers aimed at specific candidates.
As Montana Attorney General Steve Bullock told the Independent in an interview last Friday, "The action that our state commissioner of political practice filed says, 'Well, wait a minute, you've already been violating our laws, because you're trying to influence an election, and you're not registering as a political committee, and not showing where your contributions are going or where your expenditures are."
As for the blunt wording in regard to Western Tradition Partnership, the attorney general, who is also running for Montana governor this year, believes it was justified.
"I think if you read the dissent in the Citizens United case, those four justices were uncharacteristically blunt about their concerns," says Bullock. "So our Montana Supreme Court, in looking at Western Tradition Partnership and the number of lawsuits that they have filed, I think they've expressed some concerns about what this organization is and what's behind it."
Defending the mystery
Not surprisingly, American Tradition Partnership executive director Donald Ferguson doesn't subscribe to that view. Asked specifically about Justice Nelson's charges of "questionable tactics" and "blatant hypocrisy," Ferguson describes them as "incredibly unfair and completely unjustified. We're a citizen-powered, citizen-supported group," he continues. "We're actually trying to inject more accountability into politics."
American Tradition Partnership — whose mission is "fighting environmental extremism and promoting responsible development and management of land, water, and natural resources" — bills itself as a "no-compromise grassroots organization." But the "grassroots" claim is fairly nebulous, given the organization's refusal to divulge information about its contributors. Ferguson's answers to questions about the ratio of individual to corporate contributions range from the evasive — "Oh, I don't remember," and "I've had a few four-figure gifts" — to the anecdotal: "I just sent out a round of thank-you letters to people who contributed, and the biggest gift this month was $50."
But in a third conversation last week, the executive director finally acknowledged that the group served as a conduit for some serious money during 2010's Montana election races: "It was not over $500,000."
Of course, a half-million dollars can buy a lot of "free speech" in just one state, in just one year. But Ferguson says the state commissioner of political practices shouldn't be coming after his group.
"We're a lobbying organization; most everything we do is lobbying," he says. "We don't argue for or against candidates, we just want whoever gets elected to support our positions. That's why we survey all candidates and we tell all candidates either, 'Thank you, make sure you stick with it,' or 'You need to change your position.'" Ferguson also maintains that "the best time to get a candidate to switch his position is right before an election."
But a presentation to potential donors suggests that influencing election turnout is, in fact, a big part of the organization's agenda. Here's the exact wording from the group's 2010 Election Year Program Executive Briefing, as it was entered into the court record:
"The only thing we plan on reporting is our success to contributors like you who can see the benefits of a program like this. You can just sit back on election night and see what a difference you've made."
So if American Tradition Partnership views itself as a lobbying group whose activities don't run counter to Montana law, why is the group appealing this case to the U.S. Supreme Court?
"The problem," says Ferguson, "is that if that's the law on the books, they're gonna continue to misapply it to us. And there are people who would like to run ads supporting or opposing candidates, and they would not be allowed to under the current law." (For a glimpse of Western Tradition Partnership's history and its own attack ads, see "WTF is WTP?", p. 19.)
In regard to the group's lawsuits being filed under two different names, Ferguson says the group now has a Washington office and simply changed the name to fit its shifting focus. "The original idea was to simply focus on protecting the traditional economies of the West, but we've expanded, so we had to change our name to American Tradition Partnership to reflect that."
Even so, there's some cognitive dissonance between the arguments put forth by the group in its separate suits. In his majority opinion, Montana Chief Justice Mike McGrath suggests Western Tradition Partnership's assurances in one case were undermined by American Tradition Partnership's claims in another.
"We take note that Western Tradition appears to be engaged in a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements," writes McGrath. What appears ironic, he notes, is the way the group has argued that its "compliance with these same disclosure laws that it now seeks to invalidate should remedy any concerns regarding the potential corrupting influence of its unlimited corporate expenditures."
The next battles
As Western Tradition Partnership v. Attorney General makes its way to Washington, commentators have begun speculating about how it will square with Citizens United. But Larry Howell, the University of Montana law professor whose work on his state's history of corporate and political corruption is cited in the state supreme court opinion, says the decision is more nuanced than some have suggested.
"The Montana Supreme Court did not say that corporations were not people in Montana," he explains. "That's a headline I've seen, but that's not what the opinion says. The opinion accepts the fact that, decades ago, the U.S. Supreme Court decided that corporations had individual rights — like the right to privacy, the right to freedom of speech — and the opinion doesn't challenge that.
"The issue," argues Howell, "is that no right is absolute. And does Montana have sufficient compelling interest in preventing corruption that allows them to curtail the corporation's rights?"
Howell acknowledges that Montana has no monopoly on corporate and government misconduct. At the same time, he says, the state came into the union with a lot of natural resources and a relatively small population, which ended up making it a "perfect storm of political corruption."
"The entire state was controlled for a long time by corporate interests to one degree or another," says Howell. "I mean, almost every newspaper in the state was owned by the Anaconda Copper Company until the late '50s. So corporations have had an outsized influence in Montana for a long time."
Within that context, Howell shares the judges' concern that Western Tradition Partnership is, as the court puts it, acting as a conduit for those who want to spend money anonymously to influence Montana elections. "The problem with Western Tradition — and I don't know anything about them other than what's in the record in this case — is that they have been very reluctant to disclose much about them," says Howell. "And what has been disclosed about them makes it seem like they're a sham intent on circumventing campaign finance laws."
Howell is also skeptical of the group's claim to be a grassroots organization. "Yeah, I mean, Karl Rove also claims to run a grassroots operation. That's part of the problem with not requiring disclosure: You don't know who is claiming to be the grassroots."
Still, there's the one thing on which all parties tend to agree: The U.S. Supreme Court won't be overturning the Montana case before the end of this year's state election cycle.
So how will the practices of Ferguson's organization be affected in the months ahead?
"That's what we're trying to figure out," says Ferguson, who insists the Western Tradition Partnership v. Attorney General verdict is a "complete violation of freedom of speech and association."
But from the Montana Supreme Court's viewpoint, the group's path forward is clear. "WTP can still speak through its own political committee/PAC as hundreds of organizations in Montana do on an ongoing basis." The difference, says the court, "is that under Montana law the PAC has to comply with Montana's disclosure and reporting laws."
Montana Commissioner of Political Practices David Gallik also sees no ambiguity concerning the options that organizations like Ferguson's now have at their disposal. "The corporate ban is in full effect, and we intend to enforce it," he says. "From our perspective, if they're going to continue to expressly advocate for candidates or ballot measures in the state of Montana, they're gonna comply with our disclosure requirements, which include contributors and expenditures."
It was actually Gallik's predecessor, Dennis Unsworth, who first characterized WTP as "a sham organization," maintaining that the group's failure to register as a political committee and disclose the source and disposition of its funds "frustrates the purpose of Montana's Campaign Finance and Practices Act" while raising "the specter of corruption of the electoral process."
Asked what would prevent a group from circumventing the current law, Gallik describes a lengthy process for prosecuting violations. Once a complaint is received, he says, his office investigates and then issues a decision that goes to a county attorney, who has a month to decided whether to prosecute. "If they don't want to prosecute," says Gallik, "it comes back to this office and we prosecute. But we've gotta give the county attorney the first shot."
Unfortunately, that extended timeline raises a problem. Given that political attack ads and fliers are most frequently rolled out in the final weeks before an election, any punitive measures would be taken after the elections have ended. Asked if it would be possible for the state to take pre-emptive measures against an organization like Ferguson's, Gallik answers in a surprisingly straightforward manner:
"I don't think so, but — you know what? — that's not a bad question. That's really not a bad question. Yeah, I will consider that, and speak with the lawyers that assist me with this, and some of our staff folks," promises Gallik. "I guess it really hasn't come up because this is brand-spankin' new, but that's something that we should probably look at."