This opinion was published in the Detroit Free Press on June 10, 2010 under the title, 'Pay special attention to non-advocacy spending'
By Rich Robinson
In the case of Citizens United v. Federal Election Commission, the U.S. Supreme Court overturned precedent to allow corporations to make independent expenditures in election campaigns on a narrow 5-4 vote.
Less noted was Part IV of the Citizens United decision, where the Court ruled 8-1 that corporate spenders in election campaigns can be required to disclose the identities of their contributors and the amounts they give. The Court’s opinion 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.”
So, what is the state of campaign finance disclosure in Michigan? In a word: pathetic.
The Michigan Chamber of Commerce recently asked the Department of State to make a declaratory ruling on disclosure requirements for its newly won right to engage in ‘express advocacy’ – those campaign communications that explicitly exhort a vote for or against a candidate.
The Department told the Chamber that it cannot solicit or accept a contribution from any entity that is given for the purpose of paying for campaign express advocacy. But if a sympathetic-minded person or corporation just happens to give the Chamber a million dollars without saying it is “purposed” for express advocacy, then the Chamber can use the million bucks to pay for TV ads that tell you how to vote and it will only be required to report that the source of the funds was its general treasury. It doesn’t have to reveal who contributed the money.
Furthermore, if the Chamber, or one of the political parties, chooses to buy television ads that say, “Kilgore has our values and he’s fighting for us,” or “Call Kilgore and ask him why he hates the elderly,” the sponsor of the ads doesn’t even have to report that it spent money. Under the prevailing interpretation of the Michigan Campaign Finance Act, an electoral communication that doesn’t explicitly tell you how to vote is not an expenditure.
A contribution is not a contribution unless it is purposed. An expenditure is not an expenditure unless it has magic words of express advocacy. That is not a Lewis Carroll fantasy. That is the operational interpretation of our law.
Over the past decade the Chamber and the political parties have spent more than $45 million for campaign television ads that carefully avoided the language of express advocacy. They reported nothing about that spending or the contributions that enabled it. I know the scope of this undisclosed spending because I collect the data from the public files of our state’s television broadcasters and cable systems.
Most of the money in the 2008 Michigan Supreme Court campaign was off the books. In the 2006 gubernatorial campaign, nearly $20 million was off the books. If you remember any TV ad from one of those campaigns, it is very likely that it wasn’t financially disclosed.
Why does this matter? Because campaign spending in a judicial election may compromise the impartiality of a judge. Because interest groups that pay for election campaigns expect to have their policy agenda addressed.
Citizens have a right to know whose money is driving political processes so they can properly evaluate the conduct of public officials.
This is not a matter of Republicans against Democrats. It is a matter of interest groups and political parties against citizens. Big-money donors’ desire for anonymity pitted against citizens’ need to know whose money is paying for election campaigns.
Transparency and accountability are progressive values and they are conservative values. In Michigan politics, transparency and accountability are an unknown ideal.
We need a new political culture. We need an end to the old shell game where the political masters of the universe arrogantly condemn the electorate to ignorance.
To legislators: If you want trust from an angry, disaffected electorate, write serious new campaign finance disclosure laws that cover all campaign ads.
To the angry electorate: If you want to take back your country, this is where to draw the line. This may be democracy’s last stand against the invisible hands that pull the strings that make politics inexplicably polarized and dysfunctional.
We’ll have better government when we have transparent politics. Not before.