Close the loophole on electioneering communications

  • Article by: GEORGE BECK
  • Updated: January 31, 2014 - 6:52 PM

Minnesota should step up and require disclosure of what some call ‘sham issue ads’ so individuals’ votes aren’t further eroded.

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The basic democratic principle of “one person, one vote” is being eroded by changes to the rules under which money is used in political campaigns. In the 2010 Citizens United case, the U.S. Supreme Court allowed unlimited contributions to super PACs as long as the PAC money (commonly referred to as “independent expenditures”) was not spent in coordination with the campaign of the candidate on whose behalf it was spent.

Since then, the role of independent expenditures nationally and in Minnesota has continued to expand. In 2012, Minnesota legislative candidates spent a reported $9.7 million in their campaigns, while independent spenders spent $13.9 million.

The Citizens United court observed that a safeguard existed in allowing unlimited independent expenditures — there would be disclosure of the identity of the contributors. Unfortunately, that safeguard has proved illusory. Nationally, many big contributors have managed to avoid disclosure through the use of 501(c)(4) “social welfare” organizations. And in Minnesota, despite some effective disclosure laws, there is one significant loophole — there is no requirement to disclose contributions made for electioneering communications that do not directly tell the public whom to vote for.

“Electioneering communications” includes television, radio and billboard ads. At the state level, it also includes direct mail, telephone communications and print ads. But in our state, disclosure is required only if the ad uses words of express advocacy, such as “Vote for Jones.” If the ad only states “Thank you, Jones, for your votes on highways” or “Potholes don’t seem bother Jones,” then disclosure is not required, even if the ad is placed just before an election.

You can likely guess which way the money flows. These ads have been called “sham issue ads” because they are clearly aimed at electing or defeating a candidate, rather than only supporting a political issue. They are often a mailing that trashes a candidate on the eve of an election.

The scope of the problem can’t be determined without full disclosure. However, in Michigan in 2010, while $7.9 million was reported as independent expenditures, at least $22.9 million for political television ads was not reported. It’s estimated that the undisclosed political spending nationally in 2012 was more than $300 million. According to a recent report on electioneering communications and disclosure by the Minnesota League of Women Voters, “the influence of money in politics represents a dangerous threat to the health of our democracy in Minnesota and nationally.”

Spending on electioneering communications must be fully disclosed in 15 other states, while 25 states require some disclosure. But this has not been translated into law in Minnesota, despite overwhelming public support. The National Institute on Money in State Politics gave Minnesota an “F” for independent spending disclosure due to its lack of a requirement for the reporting of spending on electioneering communications. State elections have become increasingly important to big contributors because of the federal stalemate and because donors can have a significant impact while remaining anonymous.

A 2012 poll by the Clarus Research Group found that 88 percent of respondents thought campaign spending should be made public. In a democracy, voters need to know a candidate’s sources of support in order to know where the candidate really stands. The identity of the speaker is an important component of attempts to persuade. And perhaps most important, secret contributions contribute to the public’s cynicism about government and our electoral process at a time when we can ill afford additional mistrust of our political system.

Legislation regulating all electioneering communications failed in the 2013 session at the behest of special interests. It has been introduced again in 2014. But its success is uncertain unless the public support apparent in the polls is communicated to legislators.

How can voters, the media and competing candidates know if corruption is occurring without knowing who is funding a candidate? Will the choice of candidates through political parties be supplanted by candidates secretly financed by wealthy individuals, corporations and unions that act as gatekeepers? Will your vote count as it should in the face of millions of dollars of unaccountable campaign spending? Not unless we insist on it.

 

George Beck is a retired administrative law judge and a member of the Campaign Finance and Public Disclosure Board. The views expressed here are his own.

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