Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics After Citizens United and Doe v. Reed
| Citation | Vol. 27 No. 4 |
| Publication year | 2010 |
Georgia State University Law Review
Article 7
3-13-2012
Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics After Citizens United and Doe v. Reed
Ciara Torres-Spelliscy
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Torres-Spelliscy, Ciara (2010) "Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics After Citizens United and Doe v. Reed," Georgia State University Law Review: Vol. 27: Iss. 4, Article 7. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/7
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HAS THE TIDE TURNED IN FAVOR OF DISCLOSURE? REVEALING MONEY IN POLITICS AFTER CITIZENS UNITED AND DOE V. REED
Ciara Torres-Spelliscy *
In 2008, a group few had heard of called Citizens United argued to the federal district court in D.C. that although their film, Hillary the Movie, was basically a feature length campaign ad about the then-front-runner presidential candidate, Senator Hillary Clinton, nevertheless it should not be subject to the federal election law's disclosure requirements. Their basic argument was that a 2007 Supreme Court case about campaign funding source restrictions called Wisconsin Right to Life II (WRTL II) applied to disclosure as well, and WRTL II excused them, their film, and its ads from federal reporting requirements.1 The D.C. District Court did not buy what Citizens United was selling. This lower court found the funding of Hillary the Movie and its ads should be subject to the federal election laws and therefore should be fully transparent.
Two years later, the case of Citizens United morphed from an arcane battle about whether on-demand political documentaries were broadcast campaign ads subject to disclosure for the purposes of federal election law into a paradigm-shifting Supreme Court case about the ability of all corporations to spend their treasury money on any election ad. The rest is history. The Supreme Court in Citizens United v. Federal Election Commission announced that corporate money (and union money for that matter) could be spent on any
* During the drafting of this article, Ciara Torres-Spelliscy was Counsel at the Brennan Center for Justice at NYU School of Law. In the Fall of 2011 she will join the faculty of Stetson University College of Law to teach Constitutional Law and Election Law. The author would like to thank Professors Richard Hasen, Richard Briffault, and Michael Malbin for their review of an earlier draft of this piece.
1. Fed. Election Comm'n v. Wis. Right to Life, Inc. (WRTLII), 551 U.S. 449 (2007).
2. Citizens United v. Fed. Election Comm'n, 530 F. Supp. 2d 274, 280-81 (D.D.C. 2008) (holding WRTL II did not reach disclosure).
3. For a clever summary of Citizens United v. Fed. Election Comm 'n, see Devereux Chatillon, Citizens United: Coming Soon to a Cable Broadcast and Satellite Channel Near You!, 27-Apr. Comm. Law. 1 (Apr. 2010).
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independent expenditure (IEs) or electioneering communication (ECs) in any future election.4
But the basic nub of how the Citizens United case started has largely been missed in the media's coverage of the case's more shocking holding allowing unlimited corporate spending.5 The Supreme Court agreed with the district court that Citizens United's film and its ads for the film could both be constitutionally subject to federal campaign finance disclosure and disclaimer laws. This holding will have positive and lasting consequences for states that are eager to provide their electorates with robust campaign finance information. The Supreme Court, as well as lower courts, has generally been supportive of revealing the sources of money in politics with a few narrow exceptions, excusing (1) disclosure of de minimis political expenditures and (2) disclosures that could result in harassment.
First, let me offer a few words about the scope of this article. There are two basic types of campaign finance disclosure: (1) entity-wide disclosure that is applied to candidate campaign committees, political action committees, and political parties and (2) event-triggered disclosure that is initiated by purchasing a political advertisement that applies to any purchaser. Entity-wide disclosure is much more comprehensive and usually requires the committee to account for every dollar that comes into the committee and every dollar that goes out of the committee. Or in other words, PACs and other registered political committees are subject to complete transparency. This article is primarily focused on the disclosure that is triggered by the purchase of a political advertisement in either a candidate's election or in a ballot initiative election. At times to be complete, I will discuss how a particular case disposed of a challenge to entity-wide disclosure, but my primary focus here is disclosure that is triggered by the purchase of a political ad. In most cases, this requires the
4. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 913-17 (2010) (invalidating restrictions on independent expenditures and electioneering communications funded by corporate treasuries, while upholding federal disclosure and disclaimer laws).
5. Lloyd Hitoshi Mayer, Disclosures About Disclosure, 44 Ind. L. Rev. 255, 255 (2010) (questioning how much disclosure voters can digest).
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entity that funded the ad to report to the state that the ad was purchased, as well as the underlying funders of the ad. In many states, disclaimers are required on the face of the ad identifying who is responsible for the advertisement. Most of the discussion in this article will focus on the disclosure triggered by the purchase of "electioneering communications," which are also known as "sham issue ads." Under federal law, "electioneering communications" are defined as "any broadcast, cable, or satellite communication that . . . refers to a clearly identified candidate . . . within 60 days before a general election . . . or within 30 days before a primary . . . [and that] can be received by 50,000 or more persons [in the candidate's constituency]" costing at least $10,000.6
This article will cover a short but tumultuous period in the history of campaign finance disclosure law from 2007 to 2010. This article will proceed primarily in a chronological fashion to highlight the dramatic 180 degree turn that the law has taken on the issue of the constitutionality of disclosure within the past four years. First, I will explore the hostility that many lower courts were exhibiting in the short window between Wisconsin Right to Life II (WRTLII) in 2007 and Citizens United in 2010. Basically these lower courts made the mistake of applying WRTL II to disclosure laws. This mistake was corrected by the Supreme Court in Citizens United and Doe v. Reed in 2010. After Citizens United and Doe, lower courts all over the country have adopted the Supreme Court's view that disclosure and disclaimers can be constitutionally applied to advertisements that feature candidates for office directly before an election. And lower courts have gone further to endorse disclosure around ballot measure fights as well. This article will also explore the two exemptions to disclosure laws that remain alive and well even after Citizens United and Doe: (1) de minimis spending and (2) fear of harassment. Finally, this article will conclude with a few policy suggestions for lawmakers crafting new disclosure laws.
6. 2 U.S.C. § 434(f)(3)(A)-(C).
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I. Dark Days for Disclosure 2007-2010
In 2008, the Citizens United plaintiffs were probably confident that they would win their challenge to disclosure as applied to their documentary because lower courts were growing more hostile to even modest campaign finance disclosure laws. As courts struggled with the balance between the First Amendment rights of political speakers—including a right to anonymous speech in certain limited circumstances—and the public's right to know who is bankrolling political battles, during the first years of the new millennium, some lower courts struck down certain state campaign finance disclosure laws. Typically, the state laws that were found unconstitutional were ones that regulated more broadly than the federal election law.
To understand the jurisprudential battle raging in the courts between 2007 and 2010 about the permissible scope of political ad disclosures, a bit of background of campaign finance law is necessary. In 1976, Buckley v. Valeo upheld the Federal Election Campaign Act's (FECA's) disclosure requirements for independent expenditures, but limited this disclosure to the magic words express advocacy. As a result, from 1976 to 2002, hundreds of millions of dollars of corporate and union treasury funds—money that could not legally be used to influence elections at the time—poured into federal campaign ads through the "sham issue ad" loophole9—the
7. Many of these cases challenging disclosure were brought by the law firm Bopp, Coleson & Bostrom whose leading partner James Bopp has bragged to the New York Times shortly after Citizens United v. Fed. Election Comm 'n was handed down that the next step in his ten-year plan is to roll back campaign finance disclosure rules. See David D. Kirkpatrick, A Quest to End Spending Rules for Campaigns, N.Y. Times, Jan. 25, 2010, at A11.
8. The Buckley list of magic words includes: "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," and "reject." Buckley v. Valeo, 424 U.S. 1, 44, n.52 (1976). See also Brennan...
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