Because the FEC narrowly interprets rules, Last Best Place PAC can run ads without a 48-hour notice of expenditure

A shadowy super PAC behind millions of dollars worth of television ads in Montana is showing voters how rules and regulations set by the Federal Election Commission can sometimes fall short of their intended purpose.

Last Best Place PAC, which was formed on September 5, has spent $4.7 million on TV ads according to AdImpact, a firm that tracks ad spending.

Most of their ads have targeted retired Navy SEAL Tim Sheehy, a Republican who is running to take on Democratic Sen. Jon Tester in one of the Senate races that will determine partisan control of the upper chamber.

Typically, when a super PAC launches ads worth over $10,000, groups have to disclose which candidate they are supporting or opposing, how much money the expenditure costs, when the ads were disseminated, and the firm who executed the ad within 48 hours of making the communication.

Despite airing millions of dollars worth of attack ads, Last Best Place PAC hasn’t issued a single 48-hour notice of independent expenditures. It’s unclear who exactly is behind the ads.

That’s because FEC Commissioners interpret the rules very narrowly, according to Brendan Fischer, deputy executive director at Documented, a campaign finance watchdog.

According to the FEC website, an independent expenditure is defined as an expenditure for a communication, like TV, digital, and radio ads, as well as direct mail that is not made in cooperation with any candidate. It includes a candidate that is “clearly identified” that “expressly advocates the election or defeat of a candidate.

There are two ways an independent expenditure can be considered express advocacy, according to the FEC: using “explicit words of advocacy of election or defeat” or by meeting the “only reasonable interpretation test.”

Words that are considered “express advocacy” include phrases like “Democratic nominee,” or “cast your ballot for the Republican candidate.” The “only reasonable interpretation test” required advocacy of a candidate that is “unmistakable, unambiguous and suggestive of only one meaning.”

Most spots run by Last Best Place PAC highlight Sheehy’s business merged with a SPAC headquartered in the Cayman Islands and the fact that his company got a loan from the Paycheck Protection Program that was forgiven, as well as how his company profited from government contracts. Most spots don’t explicitly say that Sheehy is running for Senate; however, they do use b-roll of Sheehy giving interviews behind his campaign’s logo.

However, in one spot titled “Shady Sheehy,” the narrator says: “Sheehy got rich off government contracts, walked away from his loan, and now he and his campaign can spend millions trying to buy our Senate seat.”

Fischer said that spot clearly identifies a candidate and references his candidacy as it attacks his record.

“I suspect that you'd have a hard time finding any Montana voter who'd miss the point and mistake this for anything other than an attack ad,” he told The Messenger. “But the super PAC apparently believes that it can avoid filing independent expenditure reports because its ad doesn't explicitly tell viewers to "vote against" Sheehy. In other words, this Dem-aligned super PAC likely anticipates that the Republican FEC Commissioners won't demand any additional reporting.”

A request for comment from Last Best Place PAC was not returned.

Records from the Federal Communications Commission show that Mountain Media Agency purchased ads for the group. Mountain Media Agency’s address is the same as Old Town Media, a media buying firm used by Democratic campaigns.

Montana will be one of the Senate races that will decide which party controls the Senate. Democratic Sen. Jon Tester is seeking his fourth term and the National Republican Senatorial Committee is backing Sheehy in the GOP primary.

While Sheehy has consolidated support from NRSC Chairman and Montana Sen. Steve Daines, Montana Gov. Greg Gianforte, and Rep. Ryan Zinke, Montana’s other congressman, Rep. Matt Rosendale, is likely to launch a campaign of his own. The Washington Examiner reported that he is eyeing an entry into the race before the March filing deadline. Rosendale lost to Tester in 2018 by around three percentage points.

The PAC will have to disclose its spending on January 31, when 2023 end of year reports are due.

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How a Mysterious Super PAC Is Exploiting FEC Rules