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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

How to Achieve Maximum Disclosure of "Electioneering Communications"?

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December 15, 2004

From the hearings held yesterday in the Ohio General Assembly, the legislature evidently desires to achieve the maximum disclosure, as permitted by the First Amendment, of "electioneering communications" – i.e., political advertisements broadcast on radio or TV (including cable and satellite) that clearly identify a candidate for office.

In particular, the General Assembly seeks disclosure for such candidate-identifying broadcasts well in advance of the 60-day time period covered by the federal McCain-Feingold law (also known as the Bipartisan Campaign Reform Act, or BCRA). This objective is certainly understandable since the 2004 election contained a significant number of such "pre-season" candidate-specific broadcasts, including the infamous Swift Boat ads in the presidential race. Although it is less likely that state and local races would receive the attention of significant sums of money for broadcast advertising so early in an election year, it is not impossible, and it is appropriate that the legislature would strive to draft a disclosure law that would encompass such early broadcast campaigning.

The way to achieve this objective is by requiring disclosure of all groups that engage in a certain substantial amount of candidate-identifying broadcasts in an election year, whether before or after the 60-day mark. The triggering amount could be defined in either absolute or percentage terms (or perhaps both). For example, any group that spends $50,000 or more on candidate-identifying broadcasts in an election year is subject to these disclosure rules regardless of how small a percentage this amount is in terms of its overall operating budget. Alternatively, any group that spends 50 percent or more of its programmatic budget (exclusive of overhead and other administrative expenses) on candidate-identifying broadcasts in an election year could be subject to the disclosure rules.

The Federal Election Commission (FEC) examined both of these approaches when considering news rules for implementing the definition of a "political committee" for purposes of federal campaign finance laws. After receiving voluminous commentary from the nonprofit community, the General Counsel of the FEC recommended adoption of the percentage-based, rather than the fixed-amount, approach. (For a discussion of the GC's recommendation, see here.) The Commission, however, decided not to pursue either approach during the summer of this election year, when the presidential campaign was already underway. But both approaches are available to the General Assembly as it considers what disclosure rules to adopt for Ohio.

Moreover, and very significantly, neither approach needs to be tied to the definition of a "political committee," or PAC, in order to be used as the basis for triggering disclosure obligations. In other words, the General Assembly could choose to adopt a more stringent definition of a PAC for purposes of Ohio law – including limits on the contributions that PACs can receive from individuals, or contributions that PACs in turn can make to candidates – and then adopt a different (more encompassing) test to determine what groups are subject to disclosure rules.

To put this point more concretely, the General Assembly could specify that any group, whether a PAC or not, must meet certain disclosure requirements if it either spends a certain fixed sum of money on candidate-identifying broadcasts in an election year (again, $50,000, for example) or spends a certain percentage of its programmatic budget (say, again, 50%) on such broadcasts in an election year. The percentage-based approach would be easier to defend against a constitutional challenge, since the U.S. Supreme Court has signaled its permissibility. The Court did so by saying that any group whose "major purpose" is to influence elections may be regulated as a political committee, including being required to disclose the sums it receives and spends. Because the Court has cleared the way to treat these "major purpose" groups as PACs, the General Assembly of Ohio has the constitutional authority to impose disclosure requirements on such groups that would be less burdensome than the full regulations applicable to PACs.

Although there is less certainty of success, the fixed-sum approach could also be defended against constitutional attack, as long as it is limited to a disclosure requirement (and thus does not trigger contribution or spending limits), and especially if the General Assembly were to develop an evidentiary record showing the need for such an approach. The outline of the constitutional defense would be that any large-dollar spending on broadcasts that identify candidates during an election year triggers the state's interest in informing the electorate about the source of spending that might influence the election. While this interest is more attenuated earlier in the election year, the argument can be made that large sums of money spent on candidate-specific broadcasts even in April can affect a November election and thus are worthy of disclosure, although not more intrusive forms of regulation.

Thus, there are ways for the General Assembly to achieve disclosure beyond the 60-day period covered by the McCain-Feingold law. But, to enhance the likelihood of prevailing in a judicial challenge under the First Amendment, the General Assembly needs to identify those groups that should be subject to such disclosure. Otherwise, if the General Assembly adopts a law that requires disclosure of every candidate-identifying broadcast – regardless of when aired, by whom, or how much was spent – the legislature risks a judicial decree that its law is overly broad.