Just before the turn of the year, the Tenth Circuit decided that Citizens United, the organization, was entitled to the Colorado campaign finance law’s press exemption and so was not required to file public financial reports when producing and distributing a political documentary. Citizens United v. Gessler, 773 F.3d 200 (10th Cir. 2014). Colorado has construed the exemption broadly to apply to online publications and bloggers as well as to print and traditional media outlets. But the State urged that the Court distinguish between entities about which the voters know or could easily learn something, and those hiding behind empty names lacking cue or content and having no extended operating history that listeners or views could consult for useful information. The latter organizations—the “Citizens for a Better America” or “People for Justice” —are engaged in what it termed called “drop-in advocacy” during election seasons.
The Court, impressed with the distinction, still rejected its application to Citizens United. CU was well known; there was ample information available to anyone caring to seek it out, and the informational interest of voters was adequately protected. On its reading of Citizens United, the Court emphasized the interest supporting disclosure as the voters’ informational interest, not the deterrence of “corruption” or its appearance.
This raises the question: for purposes of the disclosure requirements based on the voter’s informational interest, is it possible to distinguish between an ongoing enterprise of known purpose and the shadowy “drop-in” advocacy group which is often here today and gone tomorrow? And if it is, is that interest served primarily by disclosure of donors, or by other information about its organization and purposes?
Existing law has run into a wall. Federal and some state campaign finance law provide for “electioneering communications” reporting requirements, which apply to paid broadcast advertising that mentions candidates within 30 and 60 days of an election. This was meant to pick up “drop-in” activity having the intent and effect of influencing elections. The Court in McConnell v. FEC referred to this, as did the Congressional sponsors of McCain-Feingold, as “sham issue advertising” conducted by organizations “concealing their identities from the public.” 540 U.S. 93, 197 (2003). And more:
Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: ‘The Coalition–Americans Working for Real Change’ (funded by business organizations opposed to organized labor), ‘Citizens for Better Medicare’ (funded by the pharmaceutical industry), ‘Republicans for Clean Air’ (funded by brothers Charles and Sam Wyly). Given these tactics, Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust, and wide-open’ speech can occur when organizations hide themselves from the scrutiny of the voting public.
Id. at 196-197(citations omitted).
As it has turned out, only so much can be expected from these rules, which have limited force and application. At the federal level, the reporting rules are being aggressively litigated over the question of whether they reach all donors to the organizations or only those providing funds specifically for particular ads. If the narrow view prevails, and it is the view that Colorado also takes, reporting when it occurs will be limited to just the total amount spent.
For organizations with a knowable history, stated purpose and duration beyond the election cycle, the problems with these reporting requirements are somewhat minimized by other information available to the voter. This was the theory behind the Court’s as applied grant of a media exemption to Citizens United: CU had been producing documentaries for years, and its political goals are not secret. A “drop-in” advocacy group, however, can slip into the election cycle and then out again quickly again, into the shadows. Little or nothing is known about them, and not much more light is shed by reporting requirements given the limiting reading Colorado adopted and now being pressed on the national level. Often, however, the disclosure argument tends to lump all the groups together—the known and the unknown, the well-established and the transient—and to make donor reporting the key measure of value to the voter.
But it may be that in considering the voters’ informational interest, this emphasis on money is misplaced. The deterrence-of-corruption interest rejected by the Court would have put the focus wholly or primarily on funding sources; the informational interest it upheld may be served in part, but not necessarily, by attention to the identity of donors. The question of overriding significance for the voter on the “informational interest” theory may be more: who is running the show—who set it up, and to what end?
So a different approach, supplementing or largely supplanting donor reporting, would require disclosure of this other information about organization and mission. Citizens for a Better America or People for Justice “dropping in” for the election season could report in certain basic categories: they would provide organizing documents, the names of the individuals who run the organization, and a specific statement of the basic purposes of the organization. If Justice Scalia’s reflections in Doe v. Reed on the civic courage to stand up and be counted have force, it would seem to be precisely in relation to the individuals or organizations that organize others for a common political purpose. Do we care more in that case who signed the petitions or who organized the petition drive?
This change in emphasis from funding to organization and management might also help address the fears that donor disclosure invites harassment of supporters for simply associating with their chosen cause. These concerns appear to be heightened where the disclosure is targeted at “issues speech”—i.e. references to candidates without express advocacy. They should carry less weight if the reporting concerns only those in charge and provides basic identifying detail. The IRS calls for this kind of information from 501(c)(4)s in their Form 990 reporting, as does the FCC in implementing a “political file” requirement that sponsors of ads on issues of national importance identify officers or directors.
Financial disclosure would not have to be ruled out of this reporting scheme, only altered in priority and scale. An adaptation of Bruce Cain’s semi-disclosure proposal might also be useful here: no identification of specific donors, but the reporting of donations in ranges by type of contributions (corporate, individual, etc.) and within broad dollar ranges.
The Tenth Circuit’s focus on the differences between “drop-in” organizations and others, and its extension to CU of the press exemption’s protections, brings to mind Michael McConnell’s analysis of the Press Clause and its application to a wide range of independent speech before an election. Even on a broad reading of “press” protections, it does not follow that all such independent issues speech during campaign periods should be granted full anonymity. In protecting voters’ informational interests, there is a difference between “Citizens for This or That,” on the one hand, and the NRA or Planned Parenthood, on the other, and there is also a distinction to be drawn between those who solicit the money and those who provide it.