What's The Best Way To Police Political Campaigns?
In late April, as the Montana Legislature was getting ready to adjourn, the state Senate confirmed Jonathan Motl as Commissioner of Political Practices, a job he’s held since being appointed by Democratic Governor Steve Bullock in 2013. Montana has had four different Political Practices Commissioners since 2011, and Motl is the first in that time to win Senate confirmation, against harsh criticism from some Republicans.
“You should not confirm Jon Motl," said Republican Representative Art Wittich. "He will bring further shame to this office, and to justice itself.”
Wittich urged a Senate committee in April to reject Motl’s nomination. Wittich faces a court trial on charges Motl brought against him arising out of the 2010 election campaign. For his part Motl claimed to be unbiased and fair.
“The decisions I’ve made," explains Motl. "If you look at them objectively, don’t show any bias toward one political party”
Eventually, Motl was confirmed by the full Senate, winning the votes of eight Republicans in addition to all the Democrats.
But during the confirmation process questions were raised about whether having a single commissioner, deciding ethics complaints against lobbyists and candidates, puts too much power, and too much opportunity for mischief, in the hands of one person.
Jake Eaton, a partner at Forty Seven North Communications, a Billings-based political consulting firm, suggests a different approach: instead of a single commissioner, Montana should have a commission made up of several people, with overlapping terms, similar to the Federal Elections Commission.
“The FEC I think is a good model, the way the terms are structured," said Eaton. "You’ve got overlapping people so it’s not the same administration appointing the same people. You’ve got equal number of representatives from each party to ensure that one side or the other is not getting persecuted. In Montana we don’t have that. We’ve got one guy who’s judge jury and executioner.”
Replacing the single commissioner with a multi-member commission would require action by the state legislature. One former commissioner, Jennifer Ensley, who held the post for several months in 2011, takes the opposite view. She says having a single commissioner streamlines the operation, while a multi-member commission would turn into a bureaucracy.
“It would just pile on the red tape and slow down the complaint process and slow down the decision process," said Ensley. "One person cranking out decisions, if that office is adequately staffed and adequately funded, is perfect for Montana.”
For a look at what other states are doing in this area, we turned to Peggy Kerns, who just retired from the National Conference of State Legislatures after sixteen years as director of the Center for Ethics in Government. Kerns says 42 states including Montana have some kind of independent ethics body; some even have separate commissions for state lawmakers, lobbyists, and judges. Montana’s system, with a single appointed commissioner, is rare, possibly unique, but she emphasizes that doesn’t mean it’s the wrong solution for Montana.
“So there really isn’t any model out there that would be what anybody would call the perfect model," said Kerns. "There’s just different models, based on the culture and the needs of the state and what the state chose to do.”
While Peggy Kerns avoids comparing the ethics enforcement of various states, she does single out one state for praise: Kentucky. Kerns says the Kentucky Ethics Commission has been so effective that the state has actually drawn criticism for having what some critics see as a suspiciously low number of ethics violations.
“The response from the executive director was we haven’t caught a lot of people because we provide the training and education up front," said Kerns, "We do it every year, so our lawmakers know the rules and the laws they must follow. Second, we’re very open in providing confidential counsel to someone if they are unclear about something.”
According to former commissioner Jennifer Ensley, the real problem here in Montana might not be the nature of the Commissioner’s post, or the incumbent who’s filling it at the moment – Jonathn Motl. The problem, she thinks, is the divisive and partisan nature of Montana politics, and for that, she blames Montana’s term limits.
“When you have lawmakers who know that they’re only going to be in a particular deliberative body for eight years maximum, there's less pressure to find creative solutions and to work cordially across the aisle,” said Ensley.
The result, she says is partisan gamesmanship, particularly when a Governor of one party appoints a commissioner and the Senate is controlled by the other party, as was the case in Jonathan Motl’s nomination.
Helena attorney Mike Meloy holds a similar view. Meloy’s observed Montana politics for decades. He advises the Montana Freedom of Information Hotline and wrote an online ethics guidebook for lobbyists.
“I suffered through the pain sometimes of commissioners who were appointed by Republican governors," said Meloy. "I say that because they had a different view of what their role was, and would sometimes come down on the side of not requiring disclosure of information when I thought they should have. But, I’ve never seen the kind of partisan bickering that’s been going on that’s just really unfortunate with respect to Mr. Motl and with respect to the last three, four commissioners.”
While the Senate confirmed Jonathan Motl last month, he will only serve until January 2017, when the current six-year term ends. The Governor will have to nominate another candidate, and the Senate will hold another set of hearings, giving lawmakers and the public another chance to discuss what type of job the Commissioner of Political Practices ought to be, and what kind of person ought to fill it.