High Court Spurns Front Group

Some cases are just too ugly even for the Supreme Court, it appears. Last week it refused to grant review to a claim from Washington State challenging an important principle: the requirement that outside groups disclose their electoral spending....

June 13, 2008

Some cases are just too ugly even
for the Supreme Court, it appears. Last week it refused to grant review to a
claim from Washington State that challenged an important principle: the
requirement that outside groups disclose their electoral spending.

The group in question, called the
Voters Education Committee (VEC), was a classic astroturf 527 group (named thus
for a section of the tax code), that omitted to register with the state as a
political committee. Its one donor—the Chamber of Commerce—funneled it a
whopping $1.5 million as part of a 25-state campaign in 2004 to push
its agenda in key Attorney General and state Supreme Court races around
the country.

The papers in the case show that
the Chamber closely coordinated the marketing effort and consulted actively
with the group throughout the fall campaign, a fact only revealed after the
case began and long after the election. When VEC ran several ads attacking the
integrity of a candidate, Deborah Senn, state regulators sought sanctions
against the group for its failure to register as a political committee.

While VEC claimed its activities
had little to do with the election, the attack ads it ran showed otherwise.
One television ad alleged that Senn, as state Insurance
Commissioner, had negotiated lower fines from insurance companies in
exchange for payments to her office. It concluded that Senn had "let us down"
and exhorted viewers to "log on to learn more." Never mind that Senn was not
Insurance Commissioner when the ad ran in September 2004 or that the headlines
it quoted were from 1997. 

When VEC was fined, it countersued, seeking to toss out the rules on
political committees on First Amendment grounds and claiming that the
rules defining the committees were unconstitutionally vague. The trial
court denied VEC's claims and upheld the penalties against the group.

VEC next appealed to the Washington State Supreme Court, where it also lost.
The Court observed that Washington voters had approved several strongly
worded ballot initiatives requiring disclosure, including one from 1972
which stipulated "[t]hat political campaign and lobbying
contributions and expenditures be fully disclosed to the public and that
secrecy is to be avoided.

Moreover, the State Court pointed out that in a separate 2003 case, the U.S.
Supreme Court noted with disapproval that similar corporate front groups were
evading disclosure, and that this conflicted with the "First Amendment
interests of individual citizens seeking to make informed choices in the
political marketplace." In that case, McConnell v. Federal Election
, the U.S. Supreme Court upheld the disclosure rules.

Indeed, a revulsion to
the notion of political funding from the deep, and inevitably
self-interested, pockets of corporate actors goes back to the very first
campaign finance regimes enacted by Congress in the 1907 Tillman Act,
which banned political contributions from corporations. In another case, the
Supreme Court upheld a ban on corporate independent expenditures as a means to
address the "corrosive and distorting effects of immense aggregations of wealth
that...have little or no correlation to the public's support for the
corporation's political ideas."    

Still, it was clear why the
Washington State group was seeking another hearing with the U.S. Supreme Court.
Just last year, the Roberts Court greatly expanded the ability of corporate
interests to fund independent expenditures in Wisconsin Right to Life II v.

In its appeal to the U.S. Supreme
Court, VEC argued that Washington state law defined a political committee too
broadly and vaguely. Washington, like several other states, considers a group a
political committee when it runs ads that "support or oppose" a
candidate for office.  Against the wishes of VEC, the State Supreme Court had
refused to narrow state law to require a group to conduct "express
advocacy"—in which an ad must use a specific set of words like "vote against"
or "vote for" (terms easily avoided with artful phrasing)&mdas;before it must
register as a political committee and disclose information about its

This was the right outcome.
Disclosure in political ads should apply to a broad universe of advocacy—not
just when ads use a few trigger words like "vote for" or "against." Appropriate disclosure of the interests attempting to influence elections is important
to the health and openness of a democracy. Disclosure enables an
informed electorate to cast meaningful votes and it exposes the
machinations of shadowy front groups backed by national actors, of all

Certainly, the bare facts of this
case were very unappealing, and the decision below was well reasoned. Whether
the Court will hold the line on disclosure in the face of subsequent
direct challenges is an open question. There are several winding their way up
through the lower courts that will likely reach the High Court in the next
term. While we've dodge a bullet for now, those interested in voters' Right to
Know about elections should stay tuned.