Connecticut Breakthrough for Transparent Elections

May 10, 2012

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Connecticut Breakthrough for Transparent Elections

            Connecticut is poised to enact a groundbreaking new disclosure bill that will bring far greater transparency to the state’s elections, furthering the interests of voters and corporate shareholders alike. The Brennan Center strongly supports House Bill 5556, which the Connecticut General Assembly is preparing to send to the governor, and believes Governor Malloy should sign the bill without delay. House Bill 5556 stands on firm constitutional ground and would constitute a major step by Connecticut toward a stronger democracy.

Disclosure of Political Communications Close to an Election

            The new bill requires disclosure of political communications that refer to a specific candidate and are aired no more than ninety days before an election.[1] These requirements are plainly constitutional:  in the U.S. Supreme Court’s Citizens United decision, the Court explicitly approved similar provisions in federal law. The Court emphasized that such requirements “provide the electorate with information and insure that the voters are fully informed about the person or group who is speaking” before an election.[2] Indeed, the state could also extend the disclosure requirements to a period longer than 90 days before Election Day, if it so chose; various courts have recognized that states may constitutionally mandate broader disclosure of electioneering communications than federal law requires.[3] By knowing who is paying for political advertising about candidates before the election, voters can make more knowledgeable decisions at the ballot box.

            The law includes exceptions to the normal reporting requirements to ensure that only those communications targeting candidates in the run-up to Election Day must be disclosed. Issue advertisements made more than ninety days before an election,[4] communications made solely among the members of an organization,[5] and expenditures that do not reach the $1000 threshold need not be disclosed.[6] These exceptions strike an appropriate balance, ensuring that genuine issue advocacy, member communications, and de minimis expenditures remain unregulated, while guaranteeing disclosure of those who pay for sham issue ads—ads that don’t expressly say “vote for” a candidate, but are understood by voters as an appeal to vote one way or another:  “Call Senator Smith and tell her to stop coddling criminals.” 

            House Bill 5556 also reduces the time window during which all political communications must be reported. Political communications made outside the ninety-day window must be reported within twenty-four hours while those made within the ninety-day window must be reported within twelve hours.[7] While these requirements are more stringent than requirements in some other states, deciding upon an appropriate window for reporting is an exercise in legislative discretion entitled to deference by the courts.[8] The Connecticut legislature’s determination that a twelve hour window is appropriate in the months immediately before the election is a constitutional exercise of the legislature’s power. 

Disclosure of Donors to Organizations that Make Political Expenditures

            Organizations sometimes adopt ambiguous or misleading names—“Justice for Connecticut” or “Strong America Committee”—to shield the true identities of political spenders. To combat this tactic and ensure Connecticut voters are well informed about who actually pays for electioneering advertising, House Bill 5556 includes a new provision that requires the disclosure of big donors to organizations making political expenditures.[9] By revealing donors’ identities, the Bill ensures voters will know who truly stands behind the messages broadcast in the days leading up to an election, enabling “the electorate to make informed decisions and give proper weight to different speakers and messages.”[10]

This requirement does not require that all donors to an organization be disclosed should the organization choose to engage in political activity. Only donors of $1,000 or more are disclosed,[11] both providing anonymity to small donors and ensuring that organizations are not burdened by the onerous disclosure requirements that might result if all donors had to be disclosed. Furthermore, an organization can establish a separate segregated fund to accept all political contributions made to the organization.[12] If a donor then designates his or her contribution as being for nonpolitical purposes only, the organization can accept unlimited amounts from such a donor and the donor can remain anonymous.[13] These two exceptions ensure that donations to organizations will not be chilled—letting donors who don’t support electioneering advertising remain anonymous—while also preventing large donors who do pay for political ads from avoiding meaningful disclosure.

The new bill also requires that the names of the top five donors to an organization making a political expenditure be included in the advertisement.[14] Other states have similar disclaimer requirements,[15] and the U.S. Supreme Court and lower federal courts have repeatedly upheld disclaimer rules.[16] And, again, significant donors can remain anonymous by either giving less than $1,000 or designating their contributions as being nonpolitical. Nobody who wants to give to an organization for nonpolitical purposes has to be disclosed under the bill.

Disclosure of Corporate Political Expenditures

            In Citizens United, the Supreme Court affirmed the importance of disclosure by corporations considering engaging in political communications. “Shareholder objections raised through the procedures of corporate democracy can be more effective today because modern technology makes disclosures rapid and informative.”[17] In order to effectively participate in corporate democracy, shareholders must know the political expenditures made by the corporation and who authorized the expenditures.

            House Bill 5556 requires that the governing board of any entity incorporated or operating in Connecticut must approve all political expenditures costing more than $4,000.[18] The votes of the individual governing members must also be publicly disclosed.[19] These requirements are constitutional under the reasoning of Citizens United since without such information it is difficult, if not impossible, for shareholders to know how to appropriately react to corporate political expenditures and how to respond to corporate decision makers with whom they may not agree.[20] Just as the bill’s other provisions ensure that all Connecticut voters have information about who is funding political advertising, the bill’s provisions on corporate political spending ensure transparency and accountability for that spending, enacting “prompt disclosure of expenditures [in order to] provide shareholders . . . with the information needed to hold corporations accountable for their positions . . . .”[21]

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            House Bill 5556 represents a major achievement in bringing greater transparency to Connecticut elections. If signed into law, it would make Connecticut a national leader on disclosure. The bill is undoubtedly constitutional and should be signed by Governor Malloy as soon as possible.

For further information, contact:

Adam Skaggs, Senior Counsel
646.292.8331 
adam.skaggs@nyu.edu 

David Earley, Counsel
646.292.8364
david.earley@nyu.edu


[1] Proposed Conn. Gen. Stat. § 9-601b(a)(2); 9-612(e)(2). See H.R. 5556 (Conn. 2012).

[2] Citizens United v. FEC, 130 S. Ct. 876, 915 (2010) (quoting McConnell v. FEC, 540 U.S. 93, 196 (2003); Buckley v. Valeo, 424 U.S. 1, 76 (1976)) (internal citation marks and brackets omitted).

[3] See, e.g., Nat’l Org. for Marriage, Inc. v. Roberts, 753 F. Supp. 2d 1217 (N.D. Fla. 2010) (upholding state electioneering communications definition that was broader than federal law); Yamada v. Kuramoto, 2010 U.S. Dist. LEXIS 120795 (D. Haw. Oct. 29, 2010) (same). See also Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 60 (1st Cir. 2011) (“Following Buckley, we have granted judicial deference to plausible legislative judgments as to the appropriate location of a reporting threshold, and have upheld such legislative determinations unless they are wholly without rationality.”) (internal quotation marks omitted).

[4] Proposed Conn. Gen. Stat. § 9-601b(a)(2).

[5] Id. § 9-601b(b)(2).

[6] Id. § 9-612(e)(2).

[7] Id.

[8] Cf., e.g., Buckley, 424 U.S. at 30 (explaining that if a court “is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.”)

[9] Proposed Conn. Gen. Stat. § 9-612(e)(6)(A)-(B).

[10] Citizens United, 130 S. Ct. at 916.

[11] Proposed Conn. Gen. Stat. § 9-612(e)(6)(A)-(B).

[12] Id. § 9-612(e)(6)(A).

[13] Id.

[14] Id. § 9-621(h)(1).

[15] See, e.g., Wash. Rev. Code. Ann. § 42.17A.320(2)(b), (4), (5) (West 2012) (as amended by 2012 Wash. Legis. Serv. ch. 226 (H.B. 2499)); Cal. Gov’t Code § 84506(a)(2) (West 2012).

[16] SpeechNow.org v. FEC, 599 F.3d 686, 696–97 (D.C. Cir. 2010) (noting that “Citizens United upheld disclaimer and disclosure requirements for electioneering communications . . . citing the government’s interest in providing the electorate with information”); Iowa Right to Life Comm., Inc. v. Smithson, 750 F.Supp.2d 1020, 1026 (S.D. Iowa 2010) (finding “under Citizens United, ‘[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements’” (alteration in original)).

[17] Citizens United, 130 S. Ct. at 916.

[18] H.R. 5556 § 10(a).

[19] Id.

[20] See Citizens United, 130 S. Ct. at 916 (“Shareholders can determine whether their corporation's political speech advances the corporation’s interest in making profits, and [allows]  shareholders to react to the speech of corporate entities in a proper way.”).

[21] Citizens United, 130 S. Ct. at 916.