In Massachusetts, our statutory framework for disclosing independent election spending does not cover spending by corporations. Independent election spending is election spending other than contributions to candidates. To be considered independent spending, the spending must be made without coordination with the candidates, otherwise it is considered a campaign contribution.
Until the Citizens United decision, independent election spending by corporations was outright illegal under Massachusetts law. As a result, there is no provision in our disclosure framework to cover it. Our independent spending disclosure framework applies generally to individuals, groups and associations that are not political committees. (If they are political committees, they are also regulated but under a different framework.)
Now that Citizens United has opened the door for independent spending by corporations, we need to update our disclosure framework to include them. Senate 304 would essentially add corporations (and unions) to the list of entities mentioned in each of the sections of our independent disclosure spending framework. This would subject corporations and unions to the same basic rule that individuals are subject to: Report independent expenditures aggregating over $250 in an election.
In addition, Senate 304:
- defines rules to expose transfers of funds among entities for campaign spending;
- requires disclosure of the source of spending directly in the advertising communication itself;
- restricts coordination between candidates and independent spending.
While some of the provisions of Senate 304 are technically complex and may need refinement, the basic rule changes are not. I hope that we are able to find our way to passing at least some of the bill. It is certainly wrong (and, indeed, a little frightening) for corporations to be able to spend independently without disclosure while individuals are subject to reporting.
It would be troubling if we were to pass Senate 772, a resolution calling on Congress to reverse Citizens United through a constitutional amendment, but fail to take up Senate 304. Senate 772 engages deep and fascinating issues about the proper scope of free speech in society. And it seems to be getting more attention among the constituents that I hear from than Senate 304. As I explained in a previous post, on free speech grounds, I don’t support Senate 772.
But, putting aside the merits, Senate 772 calls on Congress to do something it almost certainly will not do, given the partisan divide — shut down corporate independent spending. Many Republicans in Congress don’t even support disclosure improvements to expose the contributors to entities making independent expenditures. It is even more far-fetched to suppose that three-quarters of the states would actually ratify such an amendment. Almost half of the states have governments that are entirely controlled (Governor and both branches of the legislature) by Republicans who may align with their colleagues in Congress on this issue.
It is important to note that Citizens United does not limit the ability of Congress or the states to require disclosure of spending. Eight justices of the Supreme Court have, in fact, commented that they do not believe the First Amendment limits the ability of Congress to require disclosure (Clarence Thomas being the dissenter).
Senate 304 is a concrete and practical measure that we can undertake in Massachusetts to preserve transparency of our own elections. The most likely opportunity will come if the Senate takes up House 4139, a package of minor election law reforms (election audits and streamlining of the voter registration process). The House has already acted on H. 4139 and several Senators support adding provisions of Senate 304 to it.