Welcome to the lobby, and the sometimes-confusing world of lobbying….
We’re just outside the Montana House chamber on a typical day during the session. Lawmakers mingle with lobbyists, people trying to persuade them to support or oppose a bill. Some lobbyists do this for a living, others are what is known as “grassroots” lobbyists, citizens hoping to sway a lawmaker to vote their way. But “grassroots” lobbying actually takes several forms, and according to Montana law, this is also grassroots lobbying:
“American taxpayers are paying to send their own jobs to foreign countries," says the announcer in a TV commercial from the group Americans for Prosperity.
“Tell President Obama American tax dollars should help American taxpayers," it continues.
Even though it was produced by a multi-million-dollar political advocacy group, this ad is legally “grassroots lobbying” because it’s not aimed directly at persuading lawmakers. Instead it’s aimed at convincing the audience, the “grassroots,” to contact their lawmaker. Montana, like all states, regulates lobbyists. But in Montana, a group that engages in grassroots lobbying, doesn’t have to register with the state or report its expenses.
“There is a lot of ambiguity in terms of what constitutes direct lobbying and what doesn’t,” says Jake Eaton, a partner with a Montana political consulting firm called 47 North Communications.
Recently a Republican official filed a complaint with the state’s Commissioner of Political Practices, claiming the Confederated Salish and Kootenai Tribes violated the state’s lobbying law. That official says the tribe paid a lobbying firm $200,000 to promote passage of the Flathead Reservation Water Compact. The complaint says the lobbying firm never reported any direct lobbying efforts to the state. That is actually perfectly legal, as long as all the money was used for grassroots lobbying. The complaint says the $200,000 amounts to “dark money” because it wasn’t reported. Eaton says he’s troubled by Commissioner Jonathan Motl’s decision to accept the complaint and start investigating it.
“Does the fact that someone has a registered lobbyist lobbying on an issue, and they are supporting issue advocacy outside of that, does that expense then also become lobbying?" asked Eaton. "I think pretty much the standard that anybody else would have told you before this case is no, that’s not anybody’s understanding of the law, but just from him taking that case, it seems that might be the road he’s going down.”
Eaton and Motl both say that the complaint focuses on a grey area of Montana law, where a lot of money changes hands, but the actual lobbying is done by citizens who are not paid. Jennifer Ensley doesn’t agree. Ensley owns Public Solutions, a political consulting firm based in Butte. Before that she served as Montana’s Commissioner of Political Practices for several months. She says the law is straightforward: as long as the people contacting legislators are NOT paid, it’s grassroots lobbying.
“There’s money spent on grassroots lobbying on an extraordinary level but it’s just that, it’s grass roots," said Ensley. "Those folks are not being paid. They’re not being paid over $25,000 to try and change the mind of a lawmaker. They’re not lobbyists. They’re citizens.”
But sometimes the distinction between direct lobbying, the kind that has to be reported to the state, and grassroots lobbying, the kind that doesn’t, comes down to details. Mike Meloy is a long-time Montana attorney. He says if you ask people to write their state senator, that’s “grassroots” lobbying. But if you give them a pre-printed postcard to sign and send in instead of having them write it themselves, that counts as direct lobbying.
“Now you see why it’s a little grey?" asks Meloy.
Meloy says the best way for groups like to avoid getting in trouble with the state is just to report every expense that might qualify as lobbying.
“Why not let the public know that you’re participating in this decision, so that everybody kind of operates off the same page? That’s what a democracy is about,” said Meloy.
Commissioner of Political Practices Jonathan Motl will decide the complaint against the CSKT in the coming months. Last week, the Montana Senate confirmed his appointment to the post. It’s the first time since 2006 that the Senate has approved someone the Governor has nominated. In a future report, we’ll look at the history of the Commissioner of Political Practices, a job that’s been held by four different people in the past four years.