Did Marge Have a Bake Sale or Did Monty Burns Write a Check?

Many of the financial disclosure laws that govern our elections are woefully out of date. Oregon's Legislature is currently considering a bill that would fix this problem through improved on-ad disclaimers.

April 16, 2011

Posted on Oregon Live.

Many of the financial disclosure laws that govern our elections are woefully out of date. They are based on the quaint notion that candidates will be the primary or the only spender in an election. But if the 2010 election cycle showed us anything, it's that outside spenders are ready to pay big bucks to influence elections. The problem, from a voter's vantage point, is it's often hard to tell who exactly is trying to sway the vote. It could be grassroots neighbors pooling funds to support a candidate or it could be your neighborhood mega-corporation trying sell you a candidate like it does Twinkies.

Oregon's Legislature is currently considering a bill -- House Bill 2894 -- that would fix this problem through improved on-ad disclaimers. This move comes after outside groups like the Republican Governors Association and the Democratic Governors Association spent millions in Oregon in 2010 without revealing the source of their funds. This may seem like a small change, but it will give voters a better sense of what group is behind what ad. This matters to everyday citizens trying to figure out whom to vote for in an election.

Not every voter, for instance, is likely to pore through campaign disclosure filings to find out who is funding each and every race on the November ballot. Instead, many busy citizens rely on mental shortcuts to place the candidates into a sensible framework. One of these shortcuts is seeing who is supporting or opposing a given candidate. If a candidate is getting praise from an industry the voter distrusts, the voter may distrust the candidate. It works the other way as well. If voters trust a company because of its good labor practices or environmental record, they may be quite interested in the candidate it supports. But when it's unclear who is praising the candidate, as is often the case, the voter is deprived of a useful democratic cue.

Think of it this way. If we were in "The Simpsons," the question of what money is behind a political ad could be as simple as whether Marge Simpson held a bake sale or whether billionaire Monty Burns signed a corporate check. Both ads could be attributed to a group with a name like "Springfield for a Better Tomorrow." Depending on your political inclinations, you might question a political message from a bunch of cupcake-peddling housewives or you might be skeptical of an ad brought to you by the owner of a nuclear power plant. Bottom line: As a voter, you should know the true source supporting or attacking a candidate, so you're in a better position to make an informed choice at the ballot.

The U.S. Supreme Court recognizes that states have an interest in requiring transparency around electoral spending to help inform the electorate. The court has repeated this mantra for 35 years, and it said it again in the Citizens United case in 2010. Disclosure and disclaimers were endorsed by both conservative and liberal justices by a margin of 8-1. Disclosing the source of money in politics is on rock-solid constitutional ground and both Republicans and Democrats can embrace this approach.

So what's to be done? Many states, including Oregon, are currently in the midst of their long legislative sessions that occur during odd (nonelection) years. Legislators should take a look at their laws to see whether their state's reporting requirements match up with the way money is actually spent. At a minimum, states need disclosure for independent expenditures. These are ads funded independently of a candidate that explicitly say vote for or vote against a candidate.

But as the Brennan Center for Justice noted in its recent report, "Transparent Elections After Citizens United," states can go further than this. They should also have disclosure of electioneering communications -- ads that criticize or praise a candidate on election eve without mentioning the word "vote."

Finally, states need to strengthen disclaimers within political ads to name the top funders of the ad. This is the change that Oregon is currently considering. This would put Oregon in the vanguard along with Connecticut and Washington state, which already have enhanced disclaimers on political ads. And Oregon could follow in the footsteps of Maryland, which, on April 11, adopted robust transparency rules including disclosure directly to shareholders.

The Oregon legislation would require political ads to list its top sponsors. So instead of listing the nonspecific "Springfield for a Better Tomorrow," the ad would also say brought to you by "Springfield Nuclear Power Plant" or "Marge Simpson, concerned citizen." Then voters would have the information they need to judge the content of the ad. This would be a big step forward in bringing transparency to Oregon's elections.