Archives for category: Disclosure

Two-time losers, the four petitioners in Worley v. Florida Secretary of State have filed a petition for certiorari asking the Supreme Court of the United States to hear their appeal of an unanimous decision handed down by the 11th Circuit Court of Appeals last summer.

Here’s hoping the high court will hear the case, and reaffirm, once again, the ability of the state of Florida to enforce its campaign finance disclosure and disclaimer statutes.

(Full Disclosure: I served as the State of Florida’s expert defending the Florida Secretary of State and Florida’s disclosure laws for Political Action Committees.)

 

I didn’t have a chance to blog SCOTUS’s decision not to grant cert. in the case, NOM v. McKee, which grew out of a an investigation launched by the Maine Ethics Commission in 2009 after the National Organization for Marriage (NOM) failed to disclose its donors in its effort to defeat Question 1, which overturned marriage equality in the state.

Here’s a link to a series of discussions about the case by Rick Hasen on his ElectionLaw blog.

Back in the spring of 2010, I provided some pro-bono assistance to attorneys in the Maine Attorney General, drawing on my work on campaign finance disclosure in similar lawsuits in California, Colorado, and Florida, and my Election Law Journal article with Beth Garrett, Veiled Political Actors.

 

 

Former Florida Governor, Jeb Bush, testifying before a House Budget Committee panel a couple days ago, championed the full transparency of all campaign donors.

Republic Report has the video:

BUSH: In a perfect world, we could have a different financing system. I love the idea of having campaigns be funded directly, rather than indirectly. And have no limits and total transparency so if people were offended by a large donor, the candidate, he or she, would have to accept responsibility for the message and the for the amount of money and who gave it. That would be, for me, talking about markets, rather than government control kind of response, that would be a better approach. [...] I would suggest Congress should show more self-restraint about allowing that influence to change policy if that’s the view.

A good place to start is my 2005 Election Law Journal article, Veiled Political Actors, with Beth Garrett, and my 2010 Direct Democracy Scholars amicus brief in Doe v. Reed, which look at disclosure laws (and loopholes) in ballot issue campaigns.

I’ve written about disclosure in ballot issue campaigns elsewhere on these pages, and I think Justice Scalia articulated the necessity of transparency in a democracy his concurring opinion in Doe v. Reed, when he wrote:

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance…Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

So, to think corporations will be cowed into submission, or be endangered by the “palpable” threat of “retaliation” and “reprisals,”in either ballot issue or candidate campaigns, as some critics of disclosure–such as former Federal Election Commission Chairman Bradley Smith now argue–I would only refer readers to Chairman Smith’s own writings. In his 2001 book, Unfree Speech, Smith grudgingly accepts a regulatory scheme grounded in disclosure. On p. 224 he admits:

Thus, there may be modest benefits to be had from a system that provides voters with information on the sources of campaign funds, through mandatory disclosure.

Indeed, disclosure not only provides “modest benefits,” it is the essential lifeblood of any democratic republic.

Unfortunately, I do not have time right now to chime in on the very important ballot measure committee contribution disclosure lawsuit, ProtectMarriage.com, which is before the U.S. Court of Appeals for the Ninth Circuit.  I’ve served as an expert in several campaign finance lawsuits across the country, including the case California Pro-Life Council v. Getman (9th Cir. 2005), when my research was used to bolster the constitutionality of California’s ballot measure disclosure requirements.  I must say that it’s gratifying to see that my 2005 Election Law Journal article with Elizabeth Garrett that details the deceptive practices of “Veiled Political Actors” is once again being used to support the case for the public disclosure of the activities of ballot issue committee, as required under California’s Political Reform Act.

If you’re interested in the topic, I’d urge you to read the Campaign Legal Center’s amicus brief filed in ProtectMarriage.com v. Bowen

As the Legal Center points out in its press release, “In the last decade alone the Supreme Court has upheld disclosure laws by votes of 8-1 three times, most recently in Doe v. Reed.  In his concurrence in the case, Justice Scalia made very clear the importance of transparency to the health of our democracy:

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.  For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.  This does not resemble the Home of the Brave.”

As the lead author of the “Direct Democracy Scholars” amicus brief in Doe v. Reed, I couldn’t agree more with Justice Scalia’s wise words or the Campaign Legal Center’s analysis.

Check it out, if you haven’t already.

Last week, the reconstituted Committee for the Re-Election of the President registered with the Federal Election Commission.

Nice stories in ProPublica and Bill Moyers Journal about the illuminating CREEP Super PAC created by my former University of Florida undergraduate student, Robert Lucas, and his effort to shed light on the shady world of Super PACs.

Contribute your voice, if not your money, here.

California Secretary of State Debra Bowen has certified the first initiative to qualify for the November 6, 2012, ballot.  If it is approved by voters, the initiative–known by proponents as “Paycheck Protection” and opponents as “Paycheck Deception”–would restrict political fundraising by prohibiting use of payroll-deducted funds for political purposes.

It’s time to set the record straight on the origins of this deceptive ballot measure, which traces its history to anti-tax crusader, and Republican insider, Grover Norquist.

In the late 1990s, Norquist and his DC-based Americans for Tax Reform organization backed several conservative initiatives on statewide ballots, including so-called paycheck “protection” measures. The major source of his funding for his efforts, it was later revealed,was the Republican National Party.  In 1993, Norquist had authored a mock policy memo (fictitiously dated “November 9, 1996”) addressed to “Republican Congressional Leaders.”  His fictitious memo detailed the GOP’s hard won “success” in the 1996 elections.  Noting the electoral power of initiatives, Norquist wrote, “I believe the wave of initiative elections in 1992 and 1994 paved the way for Republican electoral victories this year [1996].”  He highlighted how initiatives limiting legislative terms, cutting taxes and government spending, as well as anti-crime, victims rights, and parental rights ballot measures, brought fiscal and “social conservative Republican voters to the polls.”

Republican leaders apparently were convinced by Norquist’s electoral prediction.  In October 1996, the Republican National Committee (RNC) quietly contributed $4.6 million in soft money to ATR to promote federal candidates by broadcasting issue ads. While Norquist’s nonprofit did not have to disclose its subsequent expenditures, a congressional investigation (Minority Report) into campaign finance abuses in the 1990s found that ATR acted “as an alter ego of the Republican National Committee [RNC] in promoting the Republican agenda and Republican candidates, while shielding itself and its contributors from the accountability required of campaign organizations.”

Norquist’s ATR subsequently funneled a substantial amount of the RNC money to issue groups in California, Colorado, Oregon, and Nevada that were sponsoring paycheck protection ballot measures.

For example, in 1998, ATR was a major contributor to the sponsors of Oregon’s Measure 26, a paycheck “protection” initiative that qualified for Oregon’s November, 1998 ballot.  ATR also helped to finance paycheck “deception” measures in Nevada and Colorado, but they were stymied by the courts in Nevada and stalled by a union-led counterproposition in Colorado.

Earlier in 1998, Norquist’s ATR successfully spearheaded the financing of a California ballot measure designed specifically to weaken organized labor. During the crucial petition gathering phase of the campaign, ATR transferred $441,000 to the Campaign Reform Initiative in California, one of four issue committees advocating Proposition 226, a paycheck “protection” measure.  In the end, California voters defeated the measure at the polls, in large part because labor unions spent over $23 million fighting the June 1998 primary initiative.

Rather than paycheck protection, the history of these ballot measures is steeped in deception.

For more background on paycheck “protection”/”deception” ballot measures, see Daniel A. Smith. 2004. “Peeling Away the Populist Rhetoric: Toward a Taxonomy of Anti-Tax Ballot Initiatives,” Public Budgeting and Finance 24 (4): 88-110, and Elizabeth Garrett and Daniel A. Smith. 2005. “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” Election Law Journal 4 (4) 295-328.

That’s what Dan Schnur, the director of the Jesse M. Unruh Institute of Politics at the University of Southern California, told Adam Nagourney in a front page article, “In California, Asking Voters to Raise Taxes,” in today’s New York Times.

According to Schnur, “The November 2012 ballot is going to be the political equivalent of bumper car. What we have seen historically is that voters who are overwhelmed or overloaded with things tend to vote ‘no’ on everything.”

While it sounds convincing, Mr. Schnur’s statement is not really backed up by the data.

In California, between 1911 and 2010, voters considered 1180 statewide initiatives, popular referendums, and legislative referendums, passing 666 of them, for a passage rate of 56%.  When it comes to statewide initiatives, popular referendums, and legislative referendums on the ballot in general elections, Californians have approved 491 of the 893 measures.

Here’s a graph of the number of general election statewide ballot measures by year in California, and the accompanying passage rates, over time:

It’s pretty hard to discern a clear relationship over the years that suggests that an increased number of measures on the statewide ballot leads to a decreased percentage of measures adopted by the voters.

Here’s another look at the same data, using a scatterplot:

Again, there’s not a very clear pattern over the last century when looking at the number of statewide ballot measures in a general election and the overall passage rate of those measures. As the linear regression equation indicates, the relationship is quite weak. (And no, that’s not a data entry error: there really were 47 measures on California’s statewide ballot in 1914).

So, what are we to make of Mr. Schnur’s comment, in light of the data?

More measures on the ballot does not lead necessarily to lower overall support for ballot propositions. California voters don’t get “overloaded.”

California voters are not stupid, and are certainly not “dumber than chimps” as Skip Lupia rightly notes. They are able to pick and choose down the ballot, even very long ones, making binary choices that best match their own preferences. It is essential, of course, that voters have informational cues, or heuristics (such as campaign spending on a ballot measure that indicates support or opposition by vested interests) which can help voters with their civic duty when serving as lawmakers for a day.

So bring on the ballot measures in 2012, even those raising taxes on the wealthy to pay for educational and energy programs. Californians are up for the challenge.

One of my favorite nonprofits, National Institute on Money in State Politics, has a new report out, “Independent Spending in Florida, 2006-2010,” by Kevin McNellis.

The report finds an “increasing use of independent spending in Florida allowing both large donors and candidates to circumvent the state’s contribution and public financing limits, but poor disclosure laws inhibit analysis of the impact this spending had on the outcome of elections.”

Of course, SCOTUS’ Citizens United v. FEC decision from 2010 is not to blame, as porous disclosure laws in the Sunshine State have been in place for decades.

I’ve written a considerable amount on the topic, including this 2005 article with Beth Garrett,  “Veiled Political Actors and Campaign Disclosure Laws in Direct Democracy,” published in Election Law Journal, and a 2006 coauthored book chapter with Ray La Raja and Susan Orr on party financing in Florida published in the 3rd edition of The State of the Parties, “Surviving BCRA: State Party Finance in 2004.”

Ashley Lopez does a nice job summarizing the report in her column for The Florida Independent. It’s worth the read, as is the full report.

The high court has rejected (once again) efforts by gay marriage foes to block the release of signatures gathered on Referendum 71 petitions.  As I argued in my amicus brief in support of the State of Washington’s long-standing Public Disclosure Act, signatures on petitions to qualify ballot measures should be in the public domain.

The Court’s order is here. Not surprising, Justice Alito favored a stay, again putting him at odds with the other justices.

A DVD of the 138,000 individuals who signed Referendum 71 costs $15 (plus shipping costs). It can be purchased through the State Archives, which can be reached at (360) 586-1492 or research@sos.wa.gov.

I’ve coauthored this paper, forthcoming in Political Behavior, which uses signatures on ballot petitions in Arkansas and Florida to measure the effect of signing a ballot petition on voter turnout. I have another coauthored paper in the works that examines who actually signs ballot petitions.

 

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