Wednesday, August 17, 2005

Wednesday, August 17, 2005
(reposted 11/12/05 in order to kill some comment spam.)

Disclosure kills department:
In Washington State, reports Hasen, Judge Jones has ruled certain ads were express advocacy, and must be disclosed.
But, it seems from the articles and not having seen either the opinion or the ads, they were not express advocacy, and the state's action impermissably chills core political speech. Those involved in this state censorship of political speech should resign in disgrace, specifically the defendant members of the disclosure commission.
The ads are certainly advocacy. It's the "express" part that's missing.

"When advertising maligns a candidate's character, it is 'express advocacy,' " wrote Philip Stutzman, PDC director of compliance. "As such, the activities of Voters Education Committee are reportable to the Public Disclosure Commission" under state law. That of course is exactly wrong.
As was shown in McConnell, most campaign advertizing is implied rather than express.
Buckley v Valeo held that such ads are free speech protected under the constitution.
McConnell refined this standard, allowing some implied advocacy to be regulated,
but the Washington statute does not regulate implied advocacy.

The judge also got it exactly wrong:
The judge said the organization behaved like a campaign group, and not a mere "issue advocacy" group, when it used the term "cover-up" in criticizing Senn's record as insurance commissioner. The group needed to register as a campaign organization and report the identity of all donors, he said. AP story. It appears Senn, the public official whose misconduct was profiled in the ads, is a party to the suit, or at least has a lawyer, so the suit is being used to directly retaliate against true political speech.

The money came from the US Chamber of Commerce. They pointed out wrongdoing by a candidate for AG, who won the disputed primary but then lost the election. The case is being handled by the new AG, who refused to recuse. Perhaps that refusal is proper - the ads he seeks to suppress apparently benefitted him. I'm still a bit troubled.
I would welcome a link to the opinion. I have a hearing tomorrow in a campaign disclosure case, so I really shouldn't be blogging.
Below is a too-long-for-fair-use article on the case.
If any copyright holder objects to my use of it for critical and educational purposes I'll take it down.

Sunday, August 14, 2005

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State sues to uncover ad backers
Dispute over attacks on AG candidate lands in court

Richard Roesler
Staff writer
September 10, 2004

OLYMPIA – The state attorney general's office will go to court this morning to try to force a secretive political group to reveal who's paying for hundreds of thousands of dollars in TV ads attacking Democratic political candidate Deborah Senn.

The group, the Voters Education Committee, refused to meet a noon deadline Thursday to turn over the information to the state's campaign-finance watchdog, the Public Disclosure Commission.

"I guess if we're going to have to use a 2-by-4 on them, that's what we'll have to do," said PDC Commissioner Earl Tilly of Wenatchee.

State lawyers will ask a judge to force the Voters Education Committee to reveal its donors and spending by 9 a.m. Sunday, two days before the primary election.

"I think the real remedy will come next Tuesday, when the voters will have their say in this matter," said Senn's husband and campaign spokesman, Rudi Bertschi. He called the ads "an anonymous smear campaign." Senn is running for attorney general against fellow Democrat Mark Sidran and Republicans Mike Vaska and Rob McKenna.

The ads, which started Friday and are running statewide, cite a controversial decision Senn made during her two-term stint as state insurance commissioner. In 1997, she suspended most of a $700,000 fine against Prudential Insurance in exchange for the company's agreement to pay the salaries, benefits and travel expenses of four new employees for Senn's office.

Lawmakers, particularly Senate budget chairman Jim West – now Spokane's mayor – blasted the deal, calling it an end-run around the state's budget process. Senn defended it, saying the four staffers were being hired to oversee Prudential.

"Who is Deborah Senn looking out for?" asks the TV ad, detailing the controversy. "Deborah Senn let us down." It steers viewers to a Web site, www.senninsurancecrisis.com, that criticizes Senn's actions in office.

It's unclear how much the Voters Education Committee is spending on the ads, which are running in Spokane, Seattle, Tacoma and Yakima. The PDC said that checks with just three Puget Sound TV stations showed spending of $365,000. Senn believes the ad blitz is costing close to $1 million statewide.

It's also unclear just who the Voters Education Committee is. Paperwork the group filed with the federal Internal Revenue Service lists two people: Bruce Boram and Valerie Huntsberry. Both work for United for Washington, a business-backed political group.

"If you look at the named agent in this matter, Bruce Boram, he's a bit like the Jeff Gillooly of the Republican Party," said Bertschi, referring to the man who clubbed a figure-skater's knee before the 1994 Olympics trials. "He's the guy that's going to leap out of the shadows and bash the knees of your candidate with a lead pipe so that she doesn't perform as well as she might, and so that his guy stands a better chance of winning in November."

Boram, reached at his office, declined to respond.

"How literary," he said. "I'm speechless."

At an emergency PDC hearing Thursday, an attorney for the Voters Education Committee maintained that the ad is an issues ad, rather than "express advocacy" urging voters not to pick Senn.

"It (the Voters Education Committee) does not believe that its advertisement attacks Deborah Senn's character," said the group's attorney, John White. "The focus is on actions taken in her official capacity, not on Ms. Senn as an individual."

Therefore, he said, the group feels it doesn't have to register its activity with the Public Disclosure Commission. The group did register as a "527" political group with the Internal Revenue Service, but under the looser federal rules, won't have to report donors or spending until mid-October.

The PDC, however, felt that the ads are intended to deter people from voting for Senn. Because of that, the PDC ruled, the donations and spending for the ads should have been reported to the state.

"My view of it is that the ad clearly is an attack on the character of the candidate," said PDC chairman Mike Connelly, who is also Spokane's city attorney. The group unanimously agreed that the Voters Education Committee "apparently" violated state campaign-finance laws. Since the PDC can levy a maximum fine of only $2,500, it asked the attorney general's office to step in and file a suit against the Voters Education Committee. The goal is to force the group to reveal its donors in time for voters to consider that information.

"Given the time constraints, every day counts," said PDC commissioner Jane Noland.
Here are some of the state's false claims on its website,
olitical Advertising: Anyone, including individuals, corporations, unions and other organizations, paying for ads that solicit votes, funds or other support for state or local candidates, ballot measures, or political committees usually must, as part of the ad, clearly identify themselves as the sponsor. Additional information is necessary if these ads are undertaken independently of a campaign.

Some advertising items are exempt from this ID requirement (e.g., yard signs, bumper stickers, campaign buttons, etc.). However, all radio and TV ads and the vast majority of written ads - including newspaper ads, flyers, brochures and the like - must comply with the ID requirement.

Political ads relating to candidates for partisan office must always identify the candidate's party. Also, ads must not falsely claim the endorsement of any person or group.

Public Disclosure Commission - 711 Capitol Way #206 - PO Box 40908
Olympia, WA 98504-0908 - (360) 753-1111 - Fax (360) 753-1112
Toll Free - 1-877-601-2828
This year, the statute was amended in a way that would allow this sort of censorship,
and would pass muster under the federal constitution. But this suit attempts to apply that policy retroactively to the previous election, which violates due process. Whether or not the statute would be consistent with the state constitution is an open question. The press release about the new statute openly admits it is in reaction to the 2004 AG race, and also falsely claims that the new statute is to ensure compliance with McConnell. The old statutes, some of them, were already in compliance with McConnell - what they really mean is Mcconnell opened a new loophole for increased censorship.
Seattle Post.
seattle times. Olympian.
What we still don't know: Did the Chamber's money come from Microsoft or Bill Gates?
What follows is a rough draft of a fisking of the Seattle Times pro-censorship editorial.

Don't tolerate election interference

The headline is right - Washingtonians should not tolerate attempts by the state to censor poltiical speech. It's the rest of the editorial that's backwards.

A King County Superior Court ruling last week struck a blow for Washington state's values of transparent campaign financing. punishing those who speak the truth about politicians.

Judge Richard Jones ruled the Voters Education Committee had to report who paid for an incessant television ad campaign in 2004 that targeted Deborah Senn. She was running for the Democratic nomination for state attorney general. Jones agreed with the state Public Disclosure Commission's 5-0 ruling last September that the ads were expressly advocating against Senn, rather than merely informing voters — a key distinction. The PDC sued Voters Education Committee to make it register as a political committee and reveal its expenditures and contributions.
"Merely informing voters" is not the test. We know this is advocacy. The legal issue in the case is whether the advocacy was express, e.g. "Vote for" "Elect" or implied.
The judge got it wrong, but partly because defendants argued the wrong point. The ad need not be an issue ad to be constitutionally protected under Buckley v Valeo, and the state statute that regulates only express advocacy. It need only avoid express terms. In McConnell, the Brennan Center showed that 90% of election ads are not express advocacy, and neither was this.

Only two days before the election, the committee revealed the U.S. Chamber of Commerce Institute for Legal Reform was the sole contributor of $1.5 million. This revelation was improperly coerced, and those involved are entitled to sue. It's not that they need the money - it's that the principle is crucial to American democrcy and the freedom of the press, something the Seattle Times and its anonymous editorialist should understand.

This manipulative tactic of trying to capsize an election while hiding behind a locally established front organization is particularly offensive in Washington state, where voters long ago embraced the concept of transparency when it comes to campaign finance. And long ago, as part of the civil rights movement, the Supreme Court found that such speech is protected by the Constitution's right of privacy. In 1972, that right of privacy was extended to cover women's consultation with their doctors about reproductive health. Does the Times oppose the constitutional right of privacy? In 1976, in a case brought by the Libertarian Party, the Supreme Court threw out much of the Federal Election Campaign Act as an unconstitution infringement on the right to vote. Does the Times oppose the right to free and open elections?

The 1972 Open Government Law, passed by voters in 1972, reads in part: "The public's right to know of the financing of political campaigns and lobbying and the financial affairs of elected officials and candidates far outweighs any right that these matters remain secret and private."
Here, though, what happened was that the defendants exposed the finacial affairs of a government offical, a Ms. Senn. That government offical is now trying to punish them for doing so.

The state attorney general will press for penalties and fines, but it's unclear whether the Voters Education Committee has any money of its own. A lawyer for the group promises an appeal. because the law is squarely on their side.

So far, the U.S. Chamber of Commerce is not a defendant in the action, but it should be.

In Washington, the television smear campaign might have backfired, because Senn won the primary handily. Republican Rob McKenna defeated her in the general election.

The U.S. Chamber and other organizations that want to secretly interfere in Washington's elections should be put on notice:

Washington state won't tolerate it is intolerant. No political speech here, thanks.

Copyright © 2005 The Seattle Times Company Arbitrary Aardvark.
[The arbitrary aardvark blogs about election law at http://ballots.blogspot.com.]

# posted by gt @ 8:52 PM

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