This commentary first appeared in the Detroit Free Press
By Rich Robinson
This week brings a defining moment for the administration of Gov. Rick Snyder. We'll see whether he will govern in accordance with the platform of ethics in government on which he ran as a candidate.
The question comes in the form of Senate Bill 661, which was passed by the Legislature this week. The answer will come either in the form of a veto, which would be consistent with candidate Snyder's guiding principles for reinventing Michigan, or the governor's signature, which would enable dark money to dominate Michigan's political campaigns for the foreseeable future.
The bill, introduced by state Sen. Arlan Meekhof, R-West Olive, originally set out to do two things: Require state and local officeholders to file more frequent campaign finance reports in years when they are not on the ballot, and double limits on campaign contributions to state and local candidates.
It was amended during a recess in a Senate committee hearing to quash the possibility of disclosure of most campaign ads by stipulating that such disclosure of campaign expenditures is mandatory only when there are magic words of express advocacy -- an explicit exhortation to vote for or against a particular candidate. Meekhof and his colleagues adopted the amendment just hours after Secretary of State Ruth Johnson proposed a rule change that would require public disclosure of most third-party campaign spending.
The nut of the issue is the definition of a campaign expenditure. The legislators who wrote the Michigan Campaign Finance Act knew that campaign ads don't always explicitly tell viewers how to vote. The statute they adopted calls for disclosure whenever there is clear inference of support for (or opposition to) a candidate. But Secretary of State Johnson's predecessor, Terri Lynn Land, confounded the Legislature's intent when she ruled in 2003 that disclosure was required only if a campaign ad used express advocacy. All other ads, Land decreed, were "issue ads" exempt from any requirement to reveal who paid for them.
Undisclosed campaign ads masquerading as issue ads have since dominated every competitive state campaign. Over half of all spending in Michigan Supreme Court campaigns since 2004 has been off the books -- including 75% of the spending in the 2012 campaign. Half of all spending in the 2010 attorney general, secretary of state and gubernatorial campaigns was undisclosed. The statistical truth is that we don't know half of who is funding our most important campaigns -- or how those donors are rewarded.
Is all that advertising really issue advertising? A 2007 U.S. Supreme Court case, Federal Election Commission v. Wisconsin Right to Life, gave us guidance on what authentic issue advocacy is: It urges the viewer to contact a public official who can act on a matter of public policy. It does not make reference to elections, political parties or a candidate's fitness to hold office.
The Michigan version of issue ads are mostly sponsored by the political parties. Invariably, their central issue is the candidates' suitability, or unsuitability, to hold office. Many of the targets of phony issue ads are candidates who are not yet public officials, so they can't act on public policy.
The unreported $37 million spent on ads about judicial candidates? Judges are supposed to be fact-finders, not lobby-able officials. Lawyers are supposed to advocate for their clients' interests in a courtroom, not over the airwaves.
Is disclosure of spending and donors a threat to free speech? Look what the Supreme Court said in the famous Citizens United decision:
"The First Amendment protects political speech; and disclosure 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."
Is disclosure a threat to freedom of association? Those who cite a 1958 case in which the U.S. Supreme Court stopped Alabama from obtaining the NAACP's membership list are creating a false equivalence between the right to anonymity for civil rights advocates who risked being lynched and for political spenders, who risk only commercial backlash or public scorn.
The freedom at the heart of Senate Bill 661 is the freedom to launder money. The anonymous spenders in state campaigns are rational economic actors; they want a policy return for their political investment. They just don't want you to know who they are, so you can't connect the dots.
And that brings us back to the governor's choice: Will he be the steward of government transparency and accountability he promised to be when he ran for office? Or will he be the money launderers' friend -- the champion of dark money?
Incidentally, if protecting transparency and accountability isn't enough reason to veto SB 661, you should know this: 99.99% of Michiganders never bump up against Michigan's current candidate contribution limits. Just 820 Michiganders gave the limit in the 2010 gubernatorial campaign. Doubling contribution limits is a sop to the .01% of Michiganders who are constrained by current limits. Those who have the greatest influence over politics don't need to double their leverage.