[EL] exchanges on disclosure, Fortune 500 election-related contributions etc.

[Joseph Birkenstock]

I recently wrote out some thoughts about one thing that could be done in a short piece titled "Three Can Keep a Secret, If Two of Them Are Dead: A Thought Experiment Around Compelled Public Disclosure of 'Anonymous' Political Expenditures," which was published in the Virginia Journal of Law and Politics, and which is now available here via SSRN: http://ssrn.com/abstract=2104151 <https://remoteapps.capdale.com/exchweb/bin/redir.asp?URL=http://ssrn.com/abstract=2104151> .  The piece cites some of your earlier work, Roy, about the consequences and considerations around real anonymity in campaign contributions, along with Ayers & Bulow's "black box" construct, among others, and loosely evaluates one potential means for treating anonymous funding of political activity like a testimonial privilege - generally available to, but also waivable by, any donor for any purpose.  
 
In the essay, I review two shortcomings of the way the existing disclosure regime triggers disclosure based on peculiarities of the content of specific communications, and propose shifting that disclosure threshold to one based on whether the same information is already otherwise disclosed or affirmatively communicated to candidates or public officials.  I acknowledge some serious limitations of this idea, not least the implementation challenges involved in determining whether and how such an anonymous funding privilege has been waived, and exactly what to do in the event of that waiver, but I still think the general concept has a lot of appeal.  
 
Specifically, there is already broad agreement (reflected in the DISCLOSE Act, btw) that donors should always have the ability to determine whether their donations will have to be disclosed.  The proposal I consider in the essay goes further than DISCLOSE does, namely by providing a means for donors to fund even express advocacy with total anonymity, but only as long as such actual anonymity (as opposed to selective secrecy) is in fact what that donor wants.  I'd be very interested in any feedback or constructive criticism of this idea, either on-list or off.  Thanks in advance!
 
Best,
Joe
 
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA


________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Roy Schotland
Sent: Thu 7/12/2012 3:37 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] exchanges on disclosure,Fortune 500 election-related contributions etc.



May I suggest that one -the most crucial-- point has been missing from the exchanges and the endless newsclips about "outside spending" and disclosure:  What If Anything can be done?  

If anyone is betting on action by Congress, I'd like other side of that bet.  BUT what is it about us academics that's so fixated on the Feds?  Does anyone believe there are NO States in which effective disclosure law can be enacted?  (Are there any States with effective law now?  Every time I ask, I've been referred to places that suffer the old magic-words hurdle.  And does anyone require disclosure of sources for funding non-broadcast action?)  Effective disclosure in even a single State can be so significant.  E.g., in Michigan, where savvy soul Rich Robinson looks at actual TV contracts, here's last week's report by Michigan Campaign Finance Network:

"...The television ad war has been a one-sided attack against the administration and policies of President Barack Obama, funded by 501-c-4 nonprofit "social welfare" corporations that will not disclose their donors. Americans for Prosperity, American Future Fund, 60 Plus Alliance, American Energy Alliance and Crossroads GPS have spent $5.8 million for candidate-focused "issue" advertisements designed to emphasize one issue: The unsuitability of Barack Obama to be reelected president."  [emphasis added.] 

           "... Americans for Prosperity began the campaign in January and stopped its advertisements 31 days prior to the Michigan presidential primary election on February 28th, one day before a disclosure window opened that required reporting of donors to committees sponsoring 'electioneering communications.' ... American Future Fund picked up the attack campaign the day after the presidential primary, when the disclosure window for electioneering communications was again closed. American Future Fund was followed in succession by 60 Plus Alliance and American Energy Alliance. After a brief hiatus over the Easter holiday, American Future Fund and Americans for Prosperity returned to the air, ....  The relay-style campaign ran until May 18th and all parties used the same advertising agency, Mentzer Media Services.  On May 17th Crossroads GPS, another 501-c-4, assumed the advertising campaign. Crossroads GPS ... ran a four-week $2 million ad blitz that ended June 19th."

Re the anti-disclosure views, this brief bit:  The Financial Times last Friday had this line (from one of their leading columnists) about "cronyism":  "What all forms of cronyism share is a passion for secrecy and a hatred of open discussion."  Adding my view: if there were more substance to the fears of disclosure, I'd say that everything in life has pluses and minuses; but there have been fine postings about how little substance there is.  I'm so old-fashioned that I'm for disclosure of all significant-size activity, whichever side gains-- and if needed, tailored to safeguard against retaliation.  

Roy A. Schotland

Professor Emeritus

Georgetown Law Center

600 New Jersey Ave. N.W.

Washington, D.C. 20001

202/662-9098

        fax: -9680

 


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