[EL] NM donor disclosure bill

[Trevor Potter]

Trevor is not feeling ganged up on by the pro-secrecy, anti disclosure, radicals.

But he does believe that part of the " liberties of citizens" that Brad refers to is the right to elections where funders of paid speech are disclosed, so that voters will know who is paying for the speech about candidates  and can "judge which  officeholders are ' in the pocket' of the special interests." Such information does indeed help protect the liberties of the citizenry.

Trevor Potter

Sent from my iPhone

On Mar 28, 2017, at 8:38 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:

I don't want it to appear that all the pro-speech radicals are ganging up on Trevor, but I'll add one quick point.

Trevor writes: "The benefits of disclosure are not hypothetical."

This is true, though I think the benefits are often vastly overstated. But the costs of disclosure are also not hypothetical. Studies have shown that disclosure makes people, at the margin, less likely to donate, less likely to participate. Of course we know of incidents of harassment, both official and unofficial. And misleading "junk disclosure" really is an issue. Trevor (I presume) would suggest that these costs are often vastly overstated, and perhaps they are. But like the benefits, they do exist, and they are not hypothetical (though like the benefits, they may be hard to measure).

Normally, such trade-offs would be/should be a balancing act for the legislature. However, when addressing First Amendment rights, there are constitutional constraints on how much the legislature can trade off. Generally, I think legislators should tread lightly on their constituents' liberties, even where the constitution is not involved, but others disagree.



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

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of David Keating [dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>]
Sent: Tuesday, March 28, 2017 7:22 PM
To: Trevor Potter; 'Sean Parnell'; Election Law Listserv
Subject: Re: [EL] NM donor disclosure bill

And when has a disclosure threshold ever been adjusted for inflation since 1979?  Eventually the $1,000, which isn’t all that much now, will be worth a lot less.  So will the other reporting thresholds.

I could go on, but Trevor supports disclosure of donations to publish nonpartisan voter guides.  What interest that serves is beyond me.  At least NM doesn’t seem interested in that, yet.

I’ve never understood there to be any valid interest in requiring that groups report more donations than expenditures.  It’s junk disclosure. Really, we all know the informational interest is to violate people’s privacy and in getting lists of people to harass or solicit.

David
_________________________________________________
David Keating | President | Center for Competitive Politics
124 S. West Street, Suite 201 | Alexandria, VA 22314
703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
www.campaignfreedom.org<https://linkprotect.cudasvc.com/url?a=http://www.campaignfreedom.org/&c=E,1,lQ3lbG_-5n1vkBGBrXebjlqoIBDECHRdAzXfiDhXb2byd95vKoCktK0wVh6JZi3SVfHVFOoQUW8AOao_ah5O77nthJFlg75bf5_mfLZUZgg,&typo=1>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Trevor Potter
Sent: Tuesday, March 28, 2017 4:59 PM
To: 'Sean Parnell'; Election Law Listserv
Subject: Re: [EL] NM donor disclosure bill

Anyone who reads what I wrote will readily recognized that my op ed did not say what Sean claims—I did not say that a disclosure law could not constitutionally reach a 501 c3’s candidate-related activity.

To the contrary,  Sean and I are in agreement on that point: “Independence Institute v. FEC upheld the determination that campaign finance laws can be applied to a 501(c)3 entity even though it is legally prohibited from campaign intervention.”  CLC agrees that the Supreme Court has never suggested that the constitutionality of a campaign finance disclosure law turns on the tax status of the groups subject to the law. As a policy matter, the public has an informational interest in learning who is financing a group’s electioneering communications regardless of whether that group is a 501(c)(3) or a 501(c)(4). These were likely among the factors animating the New Mexico legislature’s decision not to exempt 501c3s from SB 96’s coverage by virtue of their tax status.

Because the bill could apply to 501(c)(3)s, however, does not mean that there is a substantial likelihood that it in fact will adversely affect activities by 501(c)(3)s in New Mexico. In order to trigger coverage, a 501(c)(3) which mentions a candidate would have to spend over $1,000 for an “advertisement” that either contains express advocacy for such candidate, or its functional equivalent, or (a) refers to the candidate, (b) targets the candidate’s electorate, and (c) is publicly distributed during the 60/30 pre-election windows. A candidate-centric ad purposefully circulated in the immediate days before an election is almost always outside the organizational purview of charities, and the bill’s coverage is not aimed at such groups.  Notably, nonpartisan voter guides by 501c3 are exempted from the law.

Opponents’ attempts to argue that  SB 96 would require disclosure of speech about candidates by  501(c)(3)s causes them to conjure highly unusual factual circumstances. For example, to trigger disclosure under SB 96 in Sean’s hypothetical, livestreaming or republishing that portion of the pastor’s statement in a church bulletin would, as an initial matter, have to cost the church over $1,000. Even if it satisfied this element, the statement might  still be exempt from the definition of “advertisement” as a communication by a membership organization to its members.

The benefits of disclosure are not hypothetical. Disclosure requirements, like those in SB 96, give voters information about the real sources of funding behind advertisements designed to impact choices at the ballot. Like similar laws around the country, SB 96 is meant to foster informed choices about the policies and elected leaders that will impact New Mexicans on a daily basis. These publicly policy benefits of disclosure of the sources of funding of candidate –centric advertising were robustly lauded by the United States Supreme Court in the 8-1 portion of Citizens United.

As a postscript, Mark Scarberry also raises the question of whether SB 96 applies to ballot measure advocacy (which may be engaged in by 501 c 3s, as Barnaby Zall has noted in this discussion) .  It does.  The bill also requires disclosure from those who spend over $1,000 on advertisements expressly advocating for ballot measures, or that refer to specific ballot measure during the 60/30 pre-election windows.  Donor disclosure, however, is limited to those who earmark their donations for ballot measure advocacy or who give very significant amounts (over $5,000). As most will recall, the Supreme Court has also spoken approvingly of transparency in the financing of ballot measure advocacy, and CLC certainly agrees that “[i]dentification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.” First National Bank of Boston v. Bellotti, 435 U.S. 792 n.32 (1978); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298 (1981).  It is unclear why this informational interest would be any less compelling in connection to advocacy by a 501c3 as opposed by a 501c4.

Trevor Potter
Campaign Legal Center

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean Parnell
Sent: Tuesday, March 28, 2017 12:03 PM
To: Election Law Listserv
Subject: [EL] NM donor disclosure bill

I ran across an op-ed from Trevor Potter today, concerning a donor disclosure bill in New Mexico that is apparently awaiting the governor’s signature or veto. http://www.santafenewmexican.com/opinion/my_view/looking-in-governor-should-sign-dark-money-bill/article_4164c35e-8267-577c-94a9-1287ecee677a.html<https://linkprotect.cudasvc.com/url?a=http://www.santafenewmexican.com/opinion/my_view/looking-in-governor-should-sign-dark-money-bill/article_4164c35e-8267-577c-94a9-1287ecee677a.html&c=E,1,GlOmfJVKxgut9eqKU3X_kfR7Ty4dudDpKgmtDWAIlNY21tmmdMjJxqjUnSZrK4eUMdbps9bdRRAG_Ou7250m1wI5899XaBskL9L9A0izug,,&typo=1>

One section jumped out at me, concerning disclosure of donors to charities:

Contrary to assertions by dark money proponents, SB 96 does not threaten to regulate true charities. In fact, the federal tax code already prohibits charities from spending money to influence elections—and strictly limits the amount of lobbying they can conduct as well.

Concerns that SB 96 could impact such groups are entirely hypothetical. SB 96 will apply only to political communications and simply provides basic information to New Mexico’s voters about the real sources of money funding advertisements that support or oppose ballot measures or candidates
The first sentence is simply false. Independence Institute v. FEC upheld the determination that campaign finance laws can be applied to a 501(c)3 entity even though it is legally prohibited from campaign intervention. The Campaign Legal Center even filed 3 briefs in this case supporting the application of campaign finance laws to charities. Here is (in part) what it wrote concerning disclosure and 501(c)3 entities (p. 26 of brief<https://linkprotect.cudasvc.com/url?a=http://www.campaignlegalcenter.org/sites/default/files/CLC_D21_PC%2520Amici%2520Br.FINAL_.pdf&c=E,1,vL0Oi92bVi-7jyIPBD_L0c6SUWrbV86iaG4P9smq3myTgIzvBTh5Xpv1QNGXe7-UNM5yKuGpzhhrysTI2Y-mv_Q4BeZ7WTbpi4kmyYXQq5Y_4xoKTA,,&typo=1> urging affirmance of district court ruling):

The Institute also argues that 501(c)(3) organizations should be exempted from disclosure because they are “barred, by federal law, from carrying out any candidate-centered electioneering.” Appellant Br. 43-44. To be sure, 501(c)(3) groups are prohibited from “intervening” in a “political campaign” under 26 U.S.C. §501(c)(3). But the IRS’s definition of campaign intervention, see, e.g., Rev. Rul. 2007-41, 2007-1 C.B. 1421, is used to determine whether a group meets the criteria for a tax status under Section 501(c)(3), not whether the group should be subject to disclosure under federal election law. The IRS’ definition is not—and was not intended to be—coterminous with the activity regulated under FECA. See, e.g., Shays, 337 F. Supp. 2d at 124-28 (criticizing FEC for deferring to the IRS standard because “the IRS in the past has not viewed Section 501(c)(3)’s ban on political activities to encompass activities that are... considered [to be political activities]” under federal campaign finance law). Moreover, that the Tax Code itself imposes more stringent limits on political activity by 501(c)(3) groups than by 501(c)(4) groups suggests, if anything, that section 501(c)(3) groups are entitled to less constitutional protection for their political activities.

As concerning “hypothetical” concerns, I daresay the supposed benefits of the law are hypothetical as well, in that it has yet to be enacted (and may not be, of course), and of course the application of campaign finance disclosure requirements to charities was hypothetical as well until it happened in Independence Institute v. FEC. And it’s difficult to accept the assertion about the law applying only to “political communications” that “support or oppose ballot measures or candidates” given the fact that the law is written in such a broad way as to encompass, for example, a church service where the pastor names specific elected officials and asks the congregants to pray for them (this was a weekly feature of my church in Des Moines), if that service is livestreamed or republished in a church bulletin or carried on the radio or converted to a podcast.

Best,

Sean Parnell
Vice President for Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883 (direct)
(571) 289-1374 (mobile)
sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>


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