It's bad enough that the infamous 2010 Citizens United ruling paved the way for dark money groups to mete out millions from corporate donors into federal elections, but now - even though the Supreme Court upheld disclosure mandates for sponsors of political advertisements in that same ruling - disclosure rules for political ads are under attack.
Emboldened by a series of Supreme Court cases granting First Amendment rights to corporations, corporate speech advocacy groups are trying to chip away at what's left of disclosure requirements. They argue that disclosure rules limit political expression by exposing campaign donors and ad sponsors to public scrutiny and that the activities of these donors and advisory groups are protected under the First Amendment.
Donors can already make anonymous contributions to so-called "dark money" nonprofit groups, organizations that abuse the rules of their tax exempt status to engage in political spending, but money that flows into a campaign by other means is generally subject to disclosure, and so are the sponsors of campaign advocacy.
"Judges are still willing to be open to the arguments from the same sort of people who really gave Citizens United aid, including [lawyer] James Bopp, whose position on disclosure is just very firmly against it," says author Tamara Piety, professor of law at the University of Tulsa. "I think that this current [commercial speech] doctrine is very plastic, and it offers a lot of potential for bad decisions, but it seems like there is some small, nascent pushback on expanding the doctrine to its fullest potential exhibition."
Piety is author of, Brandishing the First Amendment: Commercial Expression in America, and a report released this week by the Corporate Reform Coalition titled, "The Corporate First Amendment," detailing how courts' expansion of protections for commercial speech does not actually advance First Amendment values.
"It's hard to say when something is going to succeed and when it's not because we've seen new some arguments based on new [commercial speech] doctrines succeed and others be pushed back, and it's not clear how you can harmonize them," Piety told Truthout. "I think until the Supreme Court revisits this, every piece of commercial regulation … is potentially under a constitutional cloud."
Piety's report concludes corporate interests have used the First Amendment - with varying degrees of success - to wage a legal war on rules mandating that commercial "speakers" disclose information about their products and political activities in a wide variety of contexts. These rules range from warnings on cigarette cartons to a provision of Dodd-Frank requiring that companies disclose whether their products contain "conflict minerals" from the Democratic Republic of the Congo.
Now, it seems, corporate speech groups may be making some inroads on political advertising as well, by playing up a distinction between two types of advocacy: explicit advocacy for a candidate, versus advocacy centered around issues of debate. The distinction has figured prominently in two court cases this month.
Only three days after Wisconsin Gov. Scott Walker entered the 2016 presidential race, that state's Supreme Court ended the "John Doe" investigation into whether Governor Walker illegally coordinated with dark money nonprofit groups during the 2012 recall election.
In a 4-2 ruling split along ideological lines, the court ruled July 16 that a Wisconsin law requiring public disclosure of campaign coordination could only be enforced for "express advocacy": campaign ads trying to expressly persuade voters to cast their ballots either "for" or "against" a named candidate. The court determined that any coordination that occurred didn't violate the state law because it only involved so-called "issue advocacy," in which campaign ads focus on a specific issue related to an election campaign.
Corporate speech advocates and right-wing groups have continually made efforts to narrow disclosure duties to apply only to "express advocacy," with the long-term aim of setting up a test case that could lead the Supreme Court to change its mind on disclosure. While this strategy succeeded in terms of coordinated campaign activity in Wisconsin with the July 16 decision, it failed in another court ruling issued on the same day, in a different state.
A federal court of appeals in Philadelphia ruled in Delaware Strong Families v. Delaware Attorney General that an issue-related ad is not shielded by the First Amendment from mandated public disclosure just because it does not explicitly ask viewers to vote for or against a candidate. The court determined that such "issue advocacy" is still an attempt to persuade voters, and that they have a right to know who is trying to influence them.
A fundamental difference between the cases is that the Wisconsin ruling determines both what coordinated advocacy between campaigns and outside groups can be disclosed and also what kinds of advocacy count as contributions to candidates. The Delaware decision deals solely with disclosure.
"There is a tension about the role of this concept of express advocacy," said Daniel I. Weiner, who is senior counsel with the Brennan Center for Justice, which filed an amicus brief in the Delaware case.
According to Weiner, after the 2003 McConnell vs. FEC decision, which upheld campaign finance law under the Bipartisan Campaign Reform Act (BCRA) of 2002, many legal analysts believed the distinction between "express" and "issue" advocacy had been rendered meaningless. But Weiner says the concept started "creeping back into jurisprudence" again in another Wisconsin case, FEC vs. Wisconsin Right to Life, which struck down BCRA's restriction on "issue advocacy" in the months preceding an election.
After Citizens United mooted both cases by ruling that independent spending was constitutional, it left open the question as to whether the distinction between "express advocacy" and "issue advocacy" remains relevant. The case did not draw a distinction between types of advocacy, and the conflicting July 16 decisions exemplify the kind of potential conflict that could lead the Supreme Court to revisit the issue.
"Most courts around the country, not all, but most, have said that at least in the disclosure context, the [distinction] is really not relevant," Weiner told Truthout. "From the contribution context, obviously it seems to have a little more staying power, although, I and many other people would argue that if the ad is of value to the candidate to the point where they're coordinating, the idea that it has to be express advocacy is ridiculous. The Supreme Court itself is going to have to resolve that, but the two cases are not exactly the same."
Right-wing groups are working to use the commercial speech doctrine to frame what's left of disclosure rules as being in conflict with the First Amendment. Hundreds of corporate lobbyists met with state and local politicians this week at a luxury hotel in San Diego for the American Legislative Exchange Council's (ALEC) annual meeting. The group works to generate model legislation that advances the interests of its corporate members throughout state legislatures. One panel discussion offered this week, titled "Dark Money Debate: What Lawmakers Need to Know about the First Amendment and Anonymous Political Speech," casts disclosure rules as a violation of corporations' supposed "free speech" rights.
However, regardless of looming powerful forces like ALEC, Weiner sees "lazy partisan regulators and politicians," as the biggest threat to disclosure rules. He pointed to the gridlocked Federal Elections Commission and the lack of clear rules for social welfare nonprofits under the Internal Revenue Service's (IRS) conditions for tax-exemption. Former agency analysts expect the IRS to simply abandon its duty to stop dark money from pouring into the 2016 election from outside nonprofit groups by letting draft rules to regulate nonprofits' political activities languish.
"There are very powerful interests that think that disclosure laws, including disclosures of corporate political spending, are bad news," Weiner told Truthout. "It gives them away. They don't want shareholders and consumers interfering with corporate political activities, and they will continue to fight disclosure. Do I think that they'll be successful necessarily in the courts? No. Do I think that they are having a lot of success in front of agencies like the FEC? Yes."