After recent court rulings struck down significant campaign finance limits, the next frontier in the debate over money in politics appears to be public disclosure – whether there should be more or less of it.
That sticky question formed the main source of argument among election law experts at a symposium on campaign finance reform yesterday in Sacramento.
"The landscape has changed," said Elizabeth Garrett, a commissioner of the California Fair Political Practices Commission, which co-hosted the symposium. "Now that the groups who did not like regulation in the first place have won on so much else, I think they’re going to turn some of their guns to disclosure."
Supporters of regulation still are reeling from the 2010 U.S. Supreme Court decision in Citizens United v. Federal Election Commission, which allowed unlimited contributions from corporations and unions to attack or support politicians. That and a subsequent court ruling allowing unlimited contributions from individuals helped give rise to the super political action committees that already have spent tens of millions of dollars on attack ads and are sure to continue their outsized influence in this year's elections.
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While the Supreme Court threw out restrictions on campaign contributions as free speech, the Citizens United ruling upheld disclosure requirements that help us know the identities of the millionaires and billionaires who give to super PACs.
But complete disclosure is difficult in practice, said Columbia Law School professor Richard Briffault, because "anybody can be a corporation."
Sometimes, super PACs report donations from limited liability companies but don't disclose the individuals behind those corporate shells. And besides super PACs, vaguely named nonprofit advocacy organizations called 501(c)(4) groups are stockpiling millions of dollars to spend on this year's election and will never have to disclose their donors.
Garrett and others advocated "piercing the veil" of such entities to find out the real interests behind each group and disclosing that to the public. But critics of regulation questioned how that would be done and whether such disclosure is even important.
"It sounds like a neat theory. But in terms of actual pragmatic enforcement, how many levels do you go down?" said Benjamin Barr, who has litigated against campaign finance reforms. "Right now, the lesson from the Supreme Court and from the federal appellate courts is do less, back off and allow liberty to breathe a bit."
Bradley Smith, former chairman of the Federal Election Commission, made the case for less disclosure by arguing that it is being used to chill free speech. Smith was particularly alarmed by consumer boycotts of companies for supporting causes like Proposition 8, which banned gay marriage in California, or the American Legislative Exchange Council, which pushes conservative legislation.
"Everything is aimed toward saying, 'I hate this speech. I want to stop it. How can I harm somebody else so that he will stop speaking?' " Smith said. "I think that’s a very problematic position for us to be in."
Smith even raised the question of whether such boycotts should be legal, eliciting a wave of whispers among audience members, many of whom came from reform or regulatory backgrounds.
Garrett, on the other hand, said boycotts also are political speech and had been used to fight civil rights abuses in the 1960s and South African apartheid in the 1980s. She argued that there haven't been many concrete recent examples of harassment of individual campaign donors.
"I think we have to be a little bit careful in overstating the actual evidence of this kind of retaliation," she said.
Regardless of who wins the argument over disclosure in public discourse or the courts, the state ethics watchdog, FPPC Chairwoman Ann Ravel, made it clear which side she comes down on.
"What we do expect because of this huge flood of money in the federal level is a similar flood in California of anonymous donors, and that is a problem for us," she said. "We think that people need to know who’s funding these campaigns."