Disclosure bill essential for Delaware voters

Posted on April 20, 2012

Disclosure bill essential for Del. voters

April 30, 2012 | News Journal


It's the beginning of May, and time for the days to be brighter and longer. Inspired by the season - or perhaps just fed up with recent events - Delaware is inviting the sun to shine on money in state politics.

This spring also marks the 10th anniversary of the Bipartisan Campaign Reform Act (BCRA). One of BCRA's main accomplishments was mandating disclosure of "sham issue ads," which were spreading like weeds after April's showers.

These campaign advertisements advocated for or against candidates, but without using the "magic words" of express advocacy like "vote for" or "vote against." Previously, "Call Lilly and Tell Her Why She Stinks" avoided disclosure, but "Vote Against Lilly" triggered reporting. Post-reform, both ads are treated the same with respect to federal elections.

In recent state elections, the First State has experienced a similar proliferation of sham issue ads by outside groups - that is, spending by third parties rather than by candidates or political parties.

In 2010, for instance, many Delawareans received colorful mailings about several state legislative candidates, largely attacking them for their stance on taxes. The mailings listed a P.O. Box in Newark, but no other identifying information. And, because the cards carefully never told recipients to "vote against" any candidate, state law did not require those responsible for funding this effort to fess up. It's an oft-repeated refrain these days: Money talks, but doesn't leave its name.

And so, last week the House of Representatives introduced the Delaware Elections Disclosure Act (H.B. 300), which was unveiled by House Speaker Bob Gilligan, Senate President Pro Tem Anthony DeLuca and Gov. Jack Markell, and is co-sponsored by more than 30 lawmakers from both political parties. A companion bill (H.B. 310), sponsored by House Majority Whip Valerie Longhurst and Senate Majority Leader Patricia Blevins, would increase the penalties for individuals who file late or incomplete reports.

The act would enhance transparency in two main ways: First, it would require prompt disclosure from third parties spending more than $500 on campaign advertisements, including "electioneering communications" that target a candidate right before an election without using those magic words ("Lilly Smells Like Bad Government!"). Outside spenders would have to file a report with the Elections Commission that provides information about their political spending and lists everyone who has recently donated more than $100 to them. If a large amount of the underlying funds came from a nonprofit or business, a representative from that entity must be identified. Second, outside groups would have to stand by their ads by stating they paid for it. Under this rule, for instance, a billboard attacking Lilly would have to note that it was paid for by "The Delaware Gardeners Association PAC" and include a link to the Elections Commissioner's website for more information about that group.

These common-sense reforms are modeled on federal law and the laws of many other states. Indeed, 21 states currently require robust disclosure of electioneering communications. Such laws have been tested by time and by litigation, and have been repeatedly approved by federal courts. In fact, while the U.S. Supreme Court in Citizens United narrowly struck down restrictions on campaign spending by corporations and unions, it readily upheld BCRA's reporting and disclaimer requirements by a vote of 8 to 1.

It is widely recognized that elections are special when it comes to transparency - and that no one has a right to spend substantial sums to influence electoral outcomes in the dark. Voters are entitled to follow the money and - if they choose - base their decisions at the ballot box on what that money means to them. I might not care that "The Delaware Gardeners Association PAC" is funded entirely by out-of-state real estate development companies; you might.

On Wednesday, the House Administration Committee will hold hearings on H.B. 300. The proposed reforms deserve wide support. Before summer, the Delaware Elections Disclosure Act should be enacted into law.

Mimi Marziani serves as counsel for the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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