Issue Report: Funding transparency for TV issue ads in elections

Should all election funding be made transparent?

Since the Citizens United ruling in the United States Supreme Court in early 2010, corporations, unions, and non-profits have been able to spend unlimited amounts of money on issue ads, and without having to disclose the sources of their funding. The 5-4 Citizens United ruling, passed by the conservative majority in the court, is predicated on the idea that unlimited and anonymous spending is a free speech right. The requirement is only that these corporations do not explicitly affiliate with and endorse a candidate, which means issue ads tend to focus on attacking and often smearing the opponent of the candidate they support. Opponents argue that this has a corrosive effect on the political environment, enabling moneyed-interests to spend massively in attacking the reputation of a candidate that favors measures that might run against a company’s bottom-line. These and other arguments in this public debate are outlined below.

Democracy: Is issue ad funding transparency essential to democracy?

TV issue ads conceal sources of funding behind shadow orgs

"Ignore that $800,000 behind the curtain." The Economist Democracy in America Blog. Oct 4th 2010:

“the New York Times’ Mike McIntyre set out to find out what you’d have to do in order to discover who the actual donors are behind these kinds of expenditures [for TV issue ads]. The verdict? You can’t. Mr McIntyre tries to track down a mid-sized nonprofit called the Coalition of American Seniors, which was just formed in June and has so far spent $400,000 on ads featuring smart-alecky babies in diapers attacking the Democratic health-reform bill. After a long odyssey through Delaware post-office boxes and registered service agents, he finds that the group’s telephone number rings at the offices of a Florida health-insurance broker; the political consulting firm the group lists seems to refer to just one guy, who refuses to provide any information about who its donors are.”

Issue ad funding transparency is a clear democratic imperative

President Obama warned in August of 2010: “[Currently, corporations] can buy millions of dollars worth of TV ads – and worst of all, they don’t even have to reveal who is actually paying for them. […] You don’t know if it’s a foreign-controlled corporation. You don’t know if it’s BP.”[1]

General statements in favor of campaign ad transparency

Democratic Majority Leader Harry Reid, D-Nev.: “We have these nameless, faceless individuals spending huge amounts of money, corporate money and other money. There is certainly no transparency whatsoever.”[2]

Opponents of anonymous campaign ads are just clinging to power

Senate Republican leader Mitch McConnell, R-Ky., said Democrats were playing “pure politics” in trying to stop opponents from criticizing Democratic policies. “They’re trying to rig the system to their advantage. That’s it. It’s quite simple.”[3]

Americans for Prosperity Vice President Phil Kerpen: “Democrats right now just aren’t in a good position and because their policies have failed, they’re trying to shoot the messenger. They want to create this chilling effect. They want to give people some doubt that the anonymity protections will hold in the hopes that donors will back off.”

Anonymity ensures that arguments rise above identity attacks.

When the identity of a person or organization is concealed, their arguments are considered at face-value on their merits. When identity gets involved, the focus of attention often surrounds the motivations and past actions of the individuals and orgs involved, distracting from the arguments. If democracy depends on a focus on the best arguments in the public debate, anonymity certainly is helpful.

General statements against disclosing TV issue ad funding

The NRA opposes the 2010 DISCLOSE Act’s disclaimer provision requiring TV campaign ads to list the top five donors for the ads: “There is no legitimate reason to include the NRA in H.R. 5175′s overly burdensome disclosure and reporting requirements,” wrote the NRA to congressional leaders.[4]

Anonymity: Is anonymity of funding part of free speech rights?

Anonymous funding of TV ads runs against principles of free speech

"Ignore that $800,000 behind the curtain." The Economist Democracy in America Blog. Oct 4th 2010:

“It’s all about freedom of speech and political participation, I’m told. I’m trying to imagine an analogy for this situation in a New England town meeting, circa 1789. Maybe there are huge curtains hanging along the walls. Some of the town’s citizens sit in the meeting hall’s pews, occasionally trying to be heard in little piping voices. They are overwhelmed by booming orations emanating from behind the curtains. “Henry Waddingstone is a British agent!” “Zachary Hurlburt will take away the grazing commons!” Who is speaking? The Coalition for a Grazeable Massachussetts? Who’s that? Nobody knows. Nobody ever will.”

If you're going to attack a candidate, reveal your identity

Virginia Representative Rick Boucher (D): “And I think my constituents view with deep suspicion anyone who says, ‘We’re going to attack your congressman, but we’re not going to tell you who we are.'”[5]

Anonymity brings out the worst in campaign attack ads

"Editorial: Public has right to know who is funding campaign ads." Grand Rapids Press Editorial. August 24, 2010:

“Anonymity brings out the worst in political ads, sharp edges designed to wound rather than enlighten. U.S. Rep. Peter Hoekstra, R-Holland, felt the sting. Mr. Hoekstra was on the receiving end of attacks from several groups in his unsuccessful bid for governor. They included Americans For Job Security, Michigan Taxpayers Alert and Peace & Prosperity Project.”

Anonymity is essential to free speech in modern democracy

Electronic Frontier Foundation on Anonymity:

“Anonymous communications have an important place in our political and social discourse. The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads ‘Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views…Anonymity is a shield from the tyranny of the majority…. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation…at the hand of an intolerant society.’ The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym ‘Publius,’ and ‘the Federal Farmer’ spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment. The right to anonymous speech is also protected well beyond the printed page. Thus, in 2002, the Supreme Court struck down a law requiring proselytizers to register their true names with the Mayor’s office before going door-to-door.” [This article on anonymity was not written by EFF as an explicit endorsement of anonymous funding for TV issue ads].

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