Tuesday, July 25, 2006

Court ruling makes anonymous campaign ads fair game
Associated Press
ST. PAUL - When Doug Fuller faced attack ads two years ago portraying him as a legislator asleep on the job, at least the three-term Republican legislator and voters in his Bemidji district knew who was throwing the mud.

That's because a long-standing state law required the people behind the mailings and commercials to identify themselves.

"When you have to put your name on it, there's some accountability there," said Fuller, who lost that race. Without such a law, he said, candidates and others "may be able to throw a little bit more mud if people don't know where it's coming from."

Political campaigns in Minnesota could head in that direction this year because of a court case that paves the way for anonymous mailings and ads.

In April, the Minnesota Court of Appeals ruled that the state's disclaimer law violates First Amendment speech protections. Last week, the state Supreme Court rejected an appeal, apparently leaving Minnesota without a disclaimer requirement for the first time in nearly a century.

The law made it a misdemeanor to run ads or distribute printed material without language identifying the person or group who paid for it.

The court's decision applies to races for state and local office. Federal campaigns operate under federal laws that have gone in the opposite direction when it comes to disclosure, including the "Stand-by-Your-Ad" requirement that candidates declare their approval for commercials they air.

While other state disclosure laws remain in effect, some people knowledgeable in campaign law say the appellate decision leaves plenty of room for shenanigans.

"It's a little bit frightening and disconcerting," said Sen. John Marty, DFL-Roseville, a leader on campaign law in the Legislature. "I don't think it serves the public well if people can send out anonymous smear stuff or distorted stuff."

The case that knocked out the law sprang from a 2004 city election in rural Greenfield. A mayoral candidate and his associates were upset over the way a land deal was handled by city officials.

Four days before the election, the group sent out a mailing to other Greenfield residents calling for the incumbents' ouster and accusing them of attempting to illegally profit from their elected positions. Three incumbents lost their city posts, and a formal complaint followed.

An administrative law judge assessed civil penalties against the people who mailed the packets, in part because of the lack of a proper disclaimer. They challenged the findings on several grounds, and a three-judge appeals panel ruled that Minnesota's disclaimer law went too far.

In his written opinion, Appeals Judge Randolph Peterson quoted heavily from a 1995 U.S. Supreme Court decision overturning Ohio's ban on distribution of anonymous campaign literature in a case involving a woman passing out leaflets about a school levy. Justices called anonymous pamphleteering "an honorable tradition of advocacy and of dissent."

They continued, "political speech by its nature will sometimes have unpalatable consequences, and, in general our society accords greater weight to the value of free speech than to the dangers of its misuse."

In response to that ruling and another federal court decision, Minnesota legislators changed the law twice since 1998 to allow exceptions for people acting independently of candidates or parties as long as they spent only token amounts and distributed materials at least a week before an election.

But the appeals court said the changes didn't address the law's core problems.

Erick Kaardal, a Minneapolis attorney who helped nullify the law, said there are enough safeguards still in place to allay concerns.

"People have a right under Minnesota law to unfettered anonymous political communications but not if they're false," he said. "Then you're subject to the same penalties as if you had disclosed your identities."

Minnesota's law making it a crime to distribute knowingly false campaign material was left in place by the appeals court.

Kaardal said political campaigns, parties and interest groups still must report their advertising expenses even if they don't stand by each ad.

But Meredith McGehee, policy director at the Campaign Legal Center, a Washington-based nonprofit that tracks election law trends, said the anonymous ads will be hard to police.

"These attack groups and others can fly under the radar," she said. "An interest can dump in a large amount of money and not have much disclosure about who it is and very much impact one of these down-ballot races."

In a busy campaign year where voters will see thousands of campaign ads and brochures, Marty also expects difficulty tracing all anonymous ads to their source. He called on political parties and their candidates to show some restraint.

"I just hope people on their own choose to be responsible," he said, "but I don't think we can necessarily count on that."

related: sheriff can't find anonymous critics, court rules.

appeals court decision:
(link fixed)

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