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 Commission, 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. FEC.
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 funding.
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 stripes.
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.