Minnesota must let sun shine on campaign cash
Voters deserve to know what candidates truly support.
Originally Posted in the Start Tribune: By George Beck FEBRUARY 12, 2023 — 6:00PM
When Minnesotans cast a ballot, they should know who provides money to a campaign.
Eight in 10 Minnesotans support making the identities of contributors to political campaigns public. They realize that who provides money to a campaign is an important factor to consider in deciding whether to support a candidate. It is also an important factor in being able to judge whether an elected official is voting for a contributor’s interests as opposed to the interests of the official’s constituents. That is, whether money has corrupted the campaign.
But Minnesota has struggled to adopt legislation to conform to the will of the people. Several past legislatures have considered but not enacted a change to Minnesota law that would increase disclosure by expanding the definition of “expressly advocating” in our statute by adding a “functional equivalent” test.
Present law requires disclosure only of a limited number of contributors and only if the ads use certain magic “express advocacy” words, like “elect” or “defeat.” It is easy to avoid this requirement.
The functional equivalent test would require disclosure of ads that “could only be interpreted by a reasonable person as containing advocacy of the election or defeat” of a candidate. This would conform Minnesota law to the laws of other states and federal law. This change would substantially expand the number of independent expenditure contributions — often used to purchase advertising — that would be visible to the public. It would require nonprofit organizations to report who is funding their political efforts.
Such legislation is being considered again this year (SF 3, HF 3). Both bills have passed out of the respective House and Senate Elections committees. So, there is hope.
But is this constitutional? Some believe that exposing contributions is a violation of free speech. But, in fact, in the U.S. Supreme Court’s Citizens United ruling, which unleashed billions in contributions into our political system in 2010, the court observed that any problems created would be ameliorated by disclosure. The court believed the public would see who was providing political contributions.
The Campaign Legal Center, the nation’s leading authority on campaign finance law, has concluded that disclosure laws are consistent with the First Amendment right to democratic self-government and with U.S. Supreme Court precedent.
But the Citizen United court’s observation about disclosure turned out to be too optimistic. Corporations and wealthy individuals filed to become 501(c)(4) nonprofits under IRS law and the IRS has permitted them to not reveal their political contributions. This, although the IRS law was intended to protect contributors to nonprofits like the Sierra Club, or a scientific society or a firefighter organization. That is, groups devoted to public service, not politics. But changing the IRS law is problematic at present due to congressional support for secret money. Those contributing this dark money don’t want voters, as well as shareholders, to know what they are up to.
Fortunately, other states have led the way on how to reveal contributors to voters. Arizona voters passed Proposition 211 last fall which will result in “The Voters’ Right to Know Act.” The ballot initiative was approved by a 70% margin. The Act requires the prompt and public disclosure of all contributors who gave $5,000 or more if that contribution ends up included in a total nonprofit contribution of $50,000 or more. Disclosure is required even if the contribution is given through an intermediary.
Naturally, dark money groups have sued to have the legislation declared unconstitutional, so the effect of the new law will be delayed, but not defeated. But this is a straightforward approach that could and should be adopted in Minnesota also.
George Beck is on the board of directors of Clean Elections Minnesota.