The Secret Campaign Contribution Shell Game
July 12, 2013
LANSING, Mich. – Those who fought for years to try and limit the effects of money over our elections were dealt what seemed a fatal blow three and a half years ago. That’s when the U.S. Supreme Court ruled that it was an unconstitutional limit on free speech to place any restrictions on corporate or, for that matter, union spending on elections. No matter how much money is spent, no matter how close to the election received, and no matter how outrageous the ads.
That was the famous Citizens United v. Federal Election Commission decision, which was decided on a 5 to 4 vote. But often overlooked is the fact that the court also indicated that states could, and indeed should, require anyone trying to influence campaigns to disclose how much is being spent, and by whom.
Yet Michigan doesn’t even do that.
That’s something that outrages and motivates Rich Robinson, who for years has run something called the Michigan Campaign Finance Network, (www.mcfn.org) a non-profit, non-partisan research center dedicated to documenting how much money is spent to try and influence elections…and where it comes from. Late last month, Robinson released a massive report called “ Descending Into Dark Money: A Citizen’s Guide to Michigan Campaign Finance 2012,” which attempts to chronicle spending in virtually every federal and state race this past year.
The report, which is filled with tables listing who gave what to whom, shows—as you might expect—a new record in contributions last year. But what is most ominous is that more and more of that spending can’t be accounted for, because it is so-called “issue advertising” done by sometimes shadowy groups. This has become particularly acute in judicial campaigns, especially for the Michigan Supreme Court. There, the parties and candidates spent $5 million dollars, the sources of which can be traced.
But that was vastly overshadowed by $13.85 million in “issue-oriented” TV advertising that can’t be.
“There is no public record of whose contributions paid for the issue advertising,” Robinson said, something he finds outrageous. “Citizens should have the right to know whose money is driving critically important election outcomes, so they can evaluate how campaign spending correlates,” to what politicians actually do, he said. For example, if a politician voted to relax fuel emission standards, shouldn’t people have the right to know whether an auto manufacturer gave money to her or his campaign?
The way it now stands, maybe not.
Legally, anyone could form a committee called “Citizens for Happy Kittens” and take money from the Koch brothers, or, say, the Socialist Workers Party. Then they could run ads smearing the record of some judge running for re-election. As long as such a group doesn’t actively endorse a candidate, they don’t have to disclose where their money comes from. Ironically, that seems to run directly contrary to the intent of the U.S. Supreme Court in the Citizens United case. In his latest “Dark Money” report, Robinson quotes approvingly from the majority opinion: “The First Amendment protects political speech, and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions.”
One could argue that, since there often is not enough time for harried voters to find out who sponsored a particular ad, such “informed decisions” are out of reach. But reality, Robinson noted, is what we have to work with. “I don’t believe there will be a time in the foreseeable future when there will be any restraints on spending,” he told me. “For that reason, I think it critical that we achieve authentic, rigorous disclosure of whose money is driving politics.” He knows that some rich contributors don’t want to be disclosed. “They consider disclosure to be intimidation and a threat to freedom of association,” he said.
Indeed, some groups have cited a famous civil rights case, NAACP v. Alabama (1958) in support of not requiring disclosure. In that case, in which a racist government was attempting to drive the civil rights organization out of the state, the high court ruled the state did not have a right to their membership list. “That is a preposterous equivalence,” Robinson snorted. “An angry billionaire who doesn’t want his fingerprints visible on his political spending is nothing like a civil rights worker in the Jim Crow south, and not deserving of the same protection—anonymity—afforded to someone at risk of being lynched.”
Rich Robinson knows that the chance of Michigan’s GOP-dominated legislature passing a law requiring disclosure is dim. But the campaign finance specialist thinks the legal profession should ask for a ruling from Secretary of State Ruth Johnson that the use of anonymous, issue-oriented ads in judicial races is illegal. He doesn’t think you can ever make the case for legal “issue-oriented” ads in a judicial campaign for one simple reason: “It is illegal to lobby judges. Once we achieve transparency in judicial campaigns, it will be much harder to justify in legislative and executive campaigns,” he said.
So that leaves the ball in the lawyers’ hands.
To check out the full report, and to see what money may have influenced any Michigan official, go to www.mcfn.org.
Jack Lessenberry, the longtime head of journalism at Wayne State University, can be heard on his podcast on YouTube via the Zing Media Network. He also is a winner of a National Emmy Award for a 1994 Frontline documentary on Dr. Jack Kevorkian, has served as The Toledo Blade’s writing coach and ombudsman and is now a columnist for and a consultant to both that newspaper and Block Communications, Inc. He is also the co-author of “The People’s Lawyer,” a biography of Frank Kelley, the nation’s longest-serving attorney general, and is working on a book on a pioneering newspaper family and race.