Ruling Threatens Common-Sense Delaware Law

In 2012, Delaware became a national leader when it passed much-needed enhancements to its outdated disclosure law. Now a federal judge has called these reforms into question – ostensibly to protect organizations like ours. But we support the new law – and hope to see this faulty ruling overturned.

June 15, 2014

Crossposted from The Delaware News-Journal.

Thanks to the U.S. Supreme Court, the last few years have been grim for campaign-finance laws – and golden for special interests looking to buy political access.

Yet the court's ill-conceived rulings have left at least one important safeguard on the table: disclosure rules, which allow average voters to see for themselves who is bankrolling election spending. In 2012, Delaware became a national leader when it passed much-needed enhancements to its outdated disclosure law. Now a federal judge has called these reforms into question – ostensibly to protect organizations like ours. But we support the new law – and hope to see this faulty ruling overturned.

In 2010's Citizens United v. FEC, a narrow majority of the Supreme Court declared that corporations, unions and other "independent" entities have the right to spend unlimited funds in U.S. elections. But eight of the nine justices also reaffirmed the importance of rules requiring disclosure of their contributors.

That stands to reason. Disclosure illuminates the true interests lying behind competing political messages. A mailing funded by a big oil company, for instance, will be received differently than one funded by the local chamber of commerce. The same goes for communications bankrolled from out-of-state, as opposed to those funded by the local community.

Knowing who is behind election spending allows voters to better weigh competing political messages, and to make informed decisions at the ballot box. In this way, disclosure – like political speech itself – advances vital First Amendment interests.

The problem is that many disclosure laws are riddled with loopholes. So ironically, although the court extolled transparency in Citizens United, its decisions caused a flood of "dark money" into U.S. elections coming from organizations who keep their contributors secret.

The General Assembly wisely decided to confront this problem head-on. It replaced Delaware's old disclosure law – which groups could easily sidestep by not using magic words such as "vote for" or "vote against" – with a new law extending disclosure to anyone making "electioneering communications," communications that clearly identify a candidate, target his or her electorate, and run near an election.

The law was modeled on provisions of federal law that the Supreme Court has repeatedly upheld, including in Citizens United.

Most unfortunately, in April, Judge Sue L. Robinson ruled that the new law likely could not be applied to Delaware Strong Families, a nonprofit affiliated with an activist organization called the Delaware Family Policy Council. The groups jointly produce "Values Voter" guides that publicize candidates' positions on certain issues to further a socially conservative agenda.

The judge dismissed such activities as "non-political," and suggested they could not constitutionally trigger disclosure. She mentioned two of our organizations as examples of other groups which should be protected from the new law.

We appreciate the judge's concern – but disagree strongly with her conclusions. In fact, the tidal wave of dark money that has overtaken U.S. elections in recent years has largely come from nonprofits like DSF, who claim to be "educating" the public rather than trying to influence voters. Her logic makes effective disclosure impossible.

Delawareans have long been accustomed to forthright, face-to-face political discussions with candidates and fellow citizens. DSF has every right to join the debate. But just as DSF has a strong interest in speaking about candidates in the run-up to elections, voters have a strong interest in knowing who funds its advocacy.

The best way to balance these competing concerns – and empower all Delaware voters – is to let the new disclosure law go into full effect.