Gavel Grab

The nation’s largest television networks have begun posting their public files, including their political files, on a Federal Communications Commission (FCC) website, reports the Sunlight Foundation blog.

Adopted in April, the rule applies at first only to the four largest TV networks and their affiliates in the top 50 media markets. In July of 2014 it will expand to apply to all networks.

The rule does not change the information that broadcasters are already required to disclose publicly, merely the manner in which they must disclose it. Whereas until last week networks had to maintain a physical file on site for public inspection, they are now required to post the file online.

Some House Republicans originally threatened to cut funding for implementing the FCC rule.  In June Justice at Stake wrote a letter to Democratic and Republican Congressional leaders urging them to keep the disclosure rule intact. For more information and to read the letter, see Gavel Grab. Read more

After the Supreme Court issued its landmark Citizens United ruling in 2010, some reform advocates warned of Watergate-like scandals ahead. Now, a prominent election analyst says the new campaign finance order is even “Worse than Watergate.”

In a Slate essay under that headline, Richard Hasen of the U.C.-Irvine School of Law writes of a shockingly legal “influence free-for-all” that has evolved since Citizens United:

“How does the brave new world of campaign financing created by the Supreme Court’s Citizens United decision stack up against Watergate? The short answer is: Things are even worse now than they were then.

“ The 1974 scandal that brought down President Richard Nixon was all about illegal money secretly flowing to politicians. That’s still a danger, but these days, the biggest weakness of our campaign finance system is not what’s illegal, but what’s legal. … The rules increasingly allow people and corporations with great wealth to skew public policy toward their interests—without risking a jail time, or a fine, or any penalty at all. It’s an influence free-for-all.”

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There are two extended looks at hot campaign finance issues in the news media and online. They precede a week when the Supreme Court may say whether it will take up a Montana case that could lead to revisiting the landmark Citizens United campaign finance ruling from 2010.

At U.S. News & World Report, the “Debate Club” invites leaders of differing views to respond to the question, “Should There be Less Disclosure in Campaign Finance?”

Those detailing their views are Meredith McGehee, policy director at the Campaign Legal Center, “Current Disclosure Laws Fail the American People;” David N. Bossie, president of Citizens United and Citizens United Productions, “Campaign Finance Disclosure Is a Burden That Restricts Independent Speech;” Sheila Krumholz, executive director at the Center for Responsive Politics, “Campaign Finance Disclosure Maintains Integrity of Read more

House Republicans dropped an effort to cut off funding for an online political disclosure rule adopted by the Federal Communications Commission. An amendment to remove the defunding provision was then approved by the House Appropriations Committee.

Last week, Justice at Stake urged bipartisan leaders (see Gavel Grab), including the chairman and senior Democrat on the House Appropriations Committee, to protect the rule. It would require major broadcasters to disclose online who is funding campaign ads and how much they are spending for them. Currently, such records are kept by individual broadcast outlets, making it difficult to determine who is bankrolling TV election ads.

An effort in subcommittee earlier to cut off funding for the transparency requirement “attracted media attention and sparked outrage from outside public interest groups and Democrats,” according to a ProPublica article. This week, the sponsor of the successful, and controversial, amendment backed down.

Rep. Jo Ann Emerson, R-Mo., introduced a revised proposal that withdrew her earlier version and called instead for a U.S. General Accountability Office study. It would examine the effect of the political ad rule on  TV ad sales and at the costs to broadcasters of putting political ad files online. Media companies have argued that doing this would be expensive.

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Justice at Stake has urged bipartisan congressional leaders to protect a new political disclosure rule adopted by the Federal Communications Commission. The rule is under attack from some House Republicans, who are seeking to cut off funding for its implementation (see Gavel Grab).

The rule would require major broadcasters to disclose online who is funding campaign ads and how much they are spending for them. Currently, such records are kept by individual broadcast outlets, making it difficult to determine who is bankrolling TV election ads.

“JAS approaches this issue as an organization that realizes that the strength and vitality of the judiciary depends in large part upon the public’s confidence in the fairness and impartiality of judges,” JAS Executive Director Bert Brandenburg wrote in a letter to the leaders. “The public’s confidence can be strengthened by promoting greater transparency in the campaign spending made during the course of state judicial elections; in contrast, when campaign spending is more opaque, the public’s trust can be undermined.”

In the 2000-09 decade, election spending exploded in state supreme court races. According to the “New Politics of Judicial Elections 2000-2009: Decade of Change,” at least $39 million was spent by non-candidate groups on judicial election advertisements. Total spending by special interest groups and political parties was estimated at $50 million to $100 million during the decade, much of it undisclosed to the public.

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A former Federal Communications Commission chairman, Newton Minow, has urged implementation of a new FCC rule to require major broadcasters to disclose online who is funding campaign ads and how much they are spending for them.

House Republicans are pushing a legislative provision that would cut off funding for implementation of the controversial directive (see Gavel Grab).

In a Politico commentary, Minow (photo) and former FCC general counsel Henry Geller argued that the FCC is carrying out its job in a 21st century fashion, and that implementation of the new rule “accords with the Supreme Court’s admonition” about disclosure in Citizens United. In that landmark campaign finance opinion, the high court voted 8-1 to affirm the importance of political disclosure.

After the Supreme Court decided Citizens United in 2010, Bert Brandenburg, executive director of Justice at Stake, emphasized the need for campaign finance disclosure in judicial elections.

“States that elect judges should immediately enact strong, real-time reporting laws, so that special-interest spending is forced into the sunlight. Voters have a right to know who is paying to put judges on their courts,” he said. To learn more about the importance of robust disclosure laws, see the JAS issues page on the topic.

When the Supreme Court delivered its landmark Citizens United opinion, permitting corporations to pay for ads that promote or attack political candidates, it also affirmed the importance of political disclosure.

Two years hence, the author of the court’s majority ruling — Justice Anthony Kennedy — might be surprised by the explosion of secret money in politics that has occurred, an NPR report by Peter Overby said. In fact, “secret money has become the real growth area in campaign politics,” despite what Justice Kennedy said about disclosure, Overby asserted.

Justice Kennedy wrote for the court in Citizens United:

“With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

But the NPR report suggests a political reality in 2012 that seems at odds with what it calls Justice Kennedy’s “call for effective transparency” in 2010.

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A new Federal Communications Commission rule adopted in April would require major broadcasters to disclose online who is funding campaign ads and how much they are spending for them (see Gavel Grab). It might not be implemented, however, if House Republicans prevail in a new push.

On Wednesday, a House Appropriation subcommittee passed a draft 2013 appropriations bill with language inserted by GOP leaders to cut off funds to implement the controversial FCC order, according to an AdWeek article.

“So determined are Republican members of Congress to kowtow to the broadcast industry that today members of a House Appropriations subcommittee voted to strip the Federal Communications Commission of its ability to post online information that is already supposed to be public about who is paying for campaign ads,” a Sunlight Foundation blog said.

Shortly after the landmark campaign finance ruling Citizens United was handed down by the Supreme Court in 2010, Bert Brandenburg, executive director of Justice at Stake, emphasized the importance of campaign finance disclosure in judicial elections.

“States that elect judges should immediately enact strong, real-time reporting laws, so that special-interest spending is forced into the sunlight. Voters have a right to know who is paying to put judges on their courts,” he said. To learn more about the importance of robust disclosure laws, see the JAS issues page on the topic.

Rich Robinson, executive director of the Michigan Campaign Finance Network watchdog group, vigorously endorses the sweeping recommendations for judicial election reform made recently by a nonpartisan task force (see Gavel Grab).

In a Dome Magazine column, Robinson focuses in part on a top recommendation of the task force, for full disclosure of all funding for state Supreme Court campaign advertising. In support of the recommendation, he turns to the endorsement of disclosure by eight U.S. Supreme Court justices in the landmark Citizens United decision:

“The eight justices of the U.S. Supreme Court believe that voters should have the right to know whose money is paying for campaign messages in all elections so voters can make choices informed by knowledge of who is supporting the candidates. But the stakes are even higher in a state Supreme Court race than they are for a legislative or executive race. This is because all parties have a due process right to an impartial court hearing that is not biased in reality or appearance by overwhelming campaign spending by a litigant or counsel in their case. Campaign supporters must be known for presumed bias to be detected.”

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Supporters of stronger campaign finance disclosure law ought not get their hopes up right away over a federal appeals court ruling they embraced hopefully this week, election law expert Rick Hasen writes in Slate:

“[D]on’t expect to see Karl Rove’s Rolodex just yet. Crossroads GPS and other groups have found that raising money from donors who don’t want to be disclosed is good for business, and they’ve got a few ways to keep the unlimited money poured into campaigns secret yet. And before you get too excited it’s worth considering that the Supreme Court could well help them keep their secrets in 2012, even though the court has so far been a big supporter of disclosure laws.”

On Monday, a U.S. Court of Appeals panel in Washington, D.C., by a 2-1 vote, declined to stay an order by a lower court judge that directed groups running election-related TV ads to identify their donors (see Gavel Grab). District Judge Amy Berman Jackson had said the Federal Election Commission went too far when it allowed groups that fund “electioneering communications” ads to keep their financiers anonymous.

Justice at Stake, on its website, states about disclosure: “Special interest money poses a unique threat to courts, which have a constitutional obligation to be fair and impartial. Where competitive judicial elections are held, a key reform is the timely public disclosure of all campaign spending.”

Hasen operates Election Law Blog and teaches law and political science at the University of California (Irvine) School of Law. In a separate Slate commentary he urged that retired Supreme Court Justice David Souter make public a secret dissent he drafted in the Citizens United case, according to a recent New Yorker article by Jeffrey Toobin (learn about it from Gavel Grab).