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Debate: Funding transparency for TV issue ads in elections

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Should all election funding be made transparent?

Background and context

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.

See Wikipedia: Campaign finance reform and Wikipedia v. Federal Election Commission v. Federal Election Commission.

Contents

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Democracy: Is issue ad funding transparency essential to democracy?

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Pro

  • 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]


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Con

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]


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

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Con

  • 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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Partisanship: Does anonymity worsen partisanship?

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Pro

  • Business-wedded Republican party receives bulk of issue ad support Speaking at the National Press Club Thursday, Sen. Bob Menendez (D-N.J.) called the partisan spending around issue ads indicative of the GOP's legislative agenda: "I assume that when you have big banks, big oil and big insurance, there is a reason why so much independent expenditure is taking place on the Republican side."[6]


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Con

  • Liberal groups can raise anonymous funding for ads too Sean Parnell. "A campaign finance 'reform' twofer from Think Progress." Center for Competitive Politics. October 5, 2010: "if the question can and should be asked of the U.S. Chamber of Commerce, what about other entities that receive funds from foreign entities? For example, the Wikipedia entry on the Service Employees International Union states: Service Employees International Union (SEIU) is a labor union representing about 1.8 million workers in over 100 occupations in the United States, Canada, and Puerto Rico. Likewise, the International Brotherhood of Teamsters also reports members (and therefore, member dues) from Canada, and the International Brotherhood of Electrical Workers has members not just in Canada but also Panama and several Caribbean nations. And the AFL-CIO includes several member unions that include foreign members, such as the International Association of Heat and Frost Insulators and Allied Workers, the Bakery, Confectionery, Tobacco Workers and Grain Millers' International Union and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers. In fact, nearly half of the membership of the AFL-CIO have the term 'International' in their names or some other indication of foreign membership (the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada), and it is a certainty that other unions also have foreign membership. So, both the U.S. Chamber and the AFL-CIO have involvement with affiliated foreign entities, but only the Chamber's foreign members are of concern to the "reformers" at Think Progress and the Center for American Progress. I guess we can file this away as yet another example of why few believed the "reform" spin that the DISCLOSE Act treated corporations and unions equally."


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Foreign interests: Does anonymous funding of issue ads enable foreign interests?

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Con

  • Foreign funding in US election sis prohibited under current law Sean Parnell. "A campaign finance 'reform' twofer from ThinkProgress. Center for Competitive Politics. October 5th, 2010: "For months, we've been told that Citizens United "opened the floodgates" to foreign spending in U.S. elections. CCP has pointed out numerous times that this was not the case, that the Supreme Court left intact the federal law as well as Federal Election Commission regulations prohibiting foreign expenditures in U.S. elections. Today's post by Think Progress, however, acknowledges what we have been saying all along, that foreign spending in U.S. elections remains prohibited. From the excerpt above: According to legal experts consulted by ThinkProgress, the Chamber is likely skirting longstanding campaign finance law that bans the involvement of foreign corporations in American elections. Well, so much for that 'reform' talking point."


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Pro/con sources

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