[EL] accountability and disclosure

Smith, Brad BSmith at law.capital.edu
Fri Jun 1 10:00:10 PDT 2012 

Of course, in this example, there is no evidence at all of a) corrupt politicians; b) corrupt spenders; or c) foreign money (although if there were foreign money, it is highly unlikely it would be disclosed), and d) there is no evidence that this makes creates a better informed public (note that the idea of the federalist papers was that that the busy public would better evaluate the message if it DID NOT know who it came from). So we see here all the problems of overly broad disclosure regimes.

We can't ban guns because some people commit crimes with them; we can't ban speech because some people defame others; we can't ban juries because they sometimes let the guilty go free, and so on.

That said, for reasons I won't elaborate on here, I do believe that some disclosure can be justified. Unfortunately, the current effort is a push for broader disclosure than the courts have traditionally upheld, primarily for the purpose of fostering private harassment of speakers (even if it's relatively low levels of harassment that don't equate to sending SWAT teams to kill you), with very little added informational value.


Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Friday, June 01, 2012 12:37 PM
To: law-election at uci.edu
Subject: [EL] accountability and disclosure

Great illustration of the need for accountability.  Note how the Koch brothers and others try  to hide behind the anodyne "Center for Patients Rights" and funnel the money through numerous organizations to mask their involvement.
The busy public will evaluate campaign messages better knowing who they really came from.  And disclosure can make it harder for corrupt politicians and spenders to escape scrutiny.  At it ensures that foreign money---which the Supreme Court tells us is perfectly constitutional to BAN because of the IDENTITY of the speaker--stays out of our elections.


-------- Original Message --------
Subject:        Washington Post Column By Ruth Marcus: An End Run Around Campaign Finance Laws
Date:   Fri, 1 Jun 2012 12:25:53 -0400
From:   <wertheimer at democracy21.org><mailto:wertheimer at democracy21.org>
Reply-To:       <ekesler at democracy21.org><mailto:ekesler at democracy21.org>
To:     Rick Hasen <rhasen at law.uci.edu><mailto:rhasen at law.uci.edu>



[http://www.democracy21.org/vertical/Sites/%7B3D66FAFE-2697-446F-BB39-85FBBBA57812%7D/uploads/%7B26E04BAB-6DF1-4ECC-8611-43B60E7D98DC%7D.JPG]

_________________________________________________________________

Democracy 21 News Release, June 1, 2012, www.democracy21.org<http://www.democracy21.org/>
_________________________________________________________________

-NOTE TO THE MEDIA-

Enclosed for your review is a Washington Post column published May 31, 2012 by Ruth Marcus, entitled "An end run around campaign finance laws."

An end run around campaign finance laws
By Ruth Marcus<http://www.washingtonpost.com/ruth-marcus/2011/02/24/ABjkDzI_page.html>
May 31, 2012

To grasp the clear and present danger that the current flood of campaign cash poses to American democracy, consider the curious case of Post Office Box 72465. It demonstrates that the explosion of super PAC spending is only the second-most troubling development of recent campaign cycles.

Box 72465, on a desert road near Phoenix, belongs to a little-known group called the Center to Protect Patient Rights. According to reports by the Center for Responsive Politics and the Los Angeles Times, the center funneled more than $55 million to 26 Republican-leaning groups during the 2010 midterm election.

Where is the money from? The Times found links to the conservative Koch brothers, yet because the center is a nonprofit corporation, it is impossible to know. Such groups must disclose how they distribute their money, not who donates to them.

This privacy makes sense in the context of ordinary nonprofits. But in the ­push-the-envelope world of modern campaigns, in which such groups spend millions of dollars on thinly disguised campaign ads, the result is an end run around the fundamental principle of campaign finance law: that voters are entitled to know who is trying to influence elections.

Even the Supreme Court understands this: Disclosure, it wrote in its otherwise appalling 2010 Citizens United ruling, “permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Except when, as in the case of the Center to Protect Patient Rights, the identities — and motives — of those giving are hidden from public view. The center sent almost $13 million to the American Future Fund, a Des Moines-based group that ran campaigns against two dozen Democrats in 2010. Rep. Bruce Braley (D-Iowa) was targeted with what the Times described as “a $2-million fusillade” of radio ads, robo-calls and mailers.

“It was almost a feeling of helplessness because there was no way to identify who the source of the funds was,” Braley said. He won by two percentage points, after a 29-point margin two years earlier.

The gusher of secret money that nearly toppled Braley promises to be even more abundant this year — and the groups behind the undisclosed cash remain determined to do whatever it takes to keep the sources hidden.

In March, ruling in a lawsuit brought by Rep. Chris Van Hollen (D-Md.), a federal judge found that the Federal Election Commission was wrong to exempt nonprofits and other groups that run “electioneering communications” — advertising that names specific candidates within a short time before the election — from having to reveal their donors.

It says something about the FEC that the agency charged with overseeing campaign reporting would come out against disclosure.

Luckily, U.S. District Judge Amy Berman Jackson disagreed. “Congress intended to shine light on whoever was behind the communications bombarding voters immediately prior to elections,” she wrote. The federal appeals court in Washington refused to stay the ruling while an appeal was underway.

The response from the U.S. Chamber of Commerce was telling: It would switch its way of influencing elections rather than reveal its donors. The chamber, which has made itself a major political player, plans to spend more than $50 million during the 2012 campaign.

At a breakfast with reporters this week, chamber officials said that, in reaction to the ruling, the organization would conduct its political spending through independent expenditures that explicitly support or oppose particular candidates.

Such is the perverse mess that is the current campaign finance law. Under the Citizens United ruling, corporations, such as the chamber, can make unlimited independent expenditures. The upshot is that advertising like the chamber’s can be even more brutal — because it won’t have to pretend to be merely “educating” voters — and just as opaque.

Meanwhile, the American Future Fund, the organization that ran ads against Braley, has brazenly asked the FEC to approve a different end run. The group contends that if its ads merely mention “the administration” or “the White House,” they would not be attacking a “clearly identified candidate” and therefore not subject to disclosure requirements.

This would be laughable — if it were not such a scary illustration of the lengths to which these groups will go to avoid letting voters know who is trying to buy their elections, and the unfortunate likelihood that they will succeed.



#   #   #

Released: June 1, 2012

Contact Kathryn Beard at 202-355-9600 or kbeard at democracy21.org<mailto:kbeard at democracy21.org>.


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