Secretary Land's pass/fail legacy test

Transparency and accountability or anonymity for special interests?

LANSING –Terri Lynn Land will define her legacy as Secretary of State when her department issues its Declaratory Ruling for campaign disclosure rules necessitated by the U.S. Supreme Court decision in Citizens United v. Federal Election Commission. The Department of State’s ruling will restore transparency, accountability and integrity to Michigan election campaigns, or it will allow the malevolent campaign finance shell game that has hidden the sources of tens of millions of dollars in campaign spending to continue. It’s all up to Secretary Land.

The Michigan Chamber of Commerce requested the Declaratory Ruling to clarify how it can exercise its newly won corporate campaign spending rights, and how its new activity must be reported to the public. The Chamber wants to know whether it is enough to say that its general treasury is doing its spending, or will it have to name the contributors who feed its campaign kitty.

The problem with the way the questions have been framed is that they ignore the matter of disclosure of some $45 million in campaign spending over the past decade. Since 2000, candidate-focused electioneering communications considered to be “issue” advertisements have been a major feature of Michigan election campaigns. Those communications have conveyed messages such as: A judicial candidate is soft on crime; A gubernatorial candidate shipped jobs overseas; A judicial candidate is unqualified for the bench; A judicial candidate can’t judge fairly because he’s been asleep on the bench, and so on. All of those advertisements were designed to define the character, qualifications, or suitability for office of the candidates they featured, but records of them cannot be found in the state’s campaign finance reporting system.

The Michigan Campaign Finance Network has collected data on the spending for those candidate-focused electioneering communications from the public files of the television broadcasters and cable systems of Michigan. Those data show undisclosed spending of $11.6 million in the 2002 gubernatorial campaign; $18.1 million in the 2006 gubernatorial campaign; and, $14.3 million during Supreme Court campaigns from 2000 through 2008, exceeding the amount raised by the Supreme Court candidates in their campaign committees.

The reason those advertisements are allowed to go unreported is because they studiously avoid the use of words of ‘express advocacy’ such as “vote for,” “vote against,’ “support” or “defeat.” Those magic words have been the definitive test of whether disclosure is required, even though the definition of an expenditure in the Michigan Campaign Finance Act excludes only those communications that do not lead to a clear inference of support or opposition for a candidate.

The 2008 Michigan Supreme Court campaign neatly illustrates the problem. The candidates’ campaigns and reported independent expenditures totaled $3.7 million. Unreported and undisclosed “issue” advertisements by the Michigan Chamber of Commerce and the political parties totaled $3.8 million. Literally, over half the money spent in the campaign was off the books, and the contributors to the Chamber and the parties had absolute anonymity.

Following are examples of advertisements from the 2008 Supreme Court campaign that have been interpreted to lead to no clear inference of opposition to a candidate:

From the Michigan Republican Party: Out of Touch

From the Michigan Democratic Party: The Sleeping Judge

From the Michigan Chamber of Commerce: Dangerous Rulings

The U.S. Supreme Court has given Secretary Land a rock-solid constitutional foundation to promulgate new disclosure rules to change the willfully blind reporting system that excludes campaign communications such as these examples. The plaintiffs in Citizens United claimed that disclosure of funding sources could only be required for ‘express advocacy’ or its functional equivalent. The Court emphatically disagreed with an 8-1 vote that said the public has an interest in knowing the ultimate source of electioneering communications, whether those messages are express advocacy, its functional equivalent or authentic issue advocacy.

The Court said, “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.”

Secretary Land has a choice to make: Require the disclosure that allows citizens to give proper weight to the political speech they hear, or keep the citizens ignorant of whose money pays for campaign propaganda.

As to the question of whether corporations such as the Michigan Chamber should report spending as being from their general treasury, or name their donors: The Chamber’s own tax returns show that they raise their money for electioneering communications from “special dues” or “special assessments.” It is not onerous to require corporations such as the Chamber to make that internal accounting public. Even if it may be ‘chilling’ to some potential donors who would like to speak anonymously through the Chamber’s megaphone, the Court gives priority to the public’s right to know whose money is doing the talking.

The Department of State will publish its proposed response to the request for the Declaratory Ruling on or before April 30, 2010. The public will have five days to comment on the proposed response after it is published. The Department will publish its final response on or before May 21, 2010.

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