Campaign finance disclosure consistent with NH values

New Hampshire has consistently allowed for flexibility in campaign financing, depending upon disclosure to keep the electorate informed of who was investing in our elections.

House Bill 533 modifies the definition "political advocacy organization" for purposes of the political expenditures and contributions laws. This bill closes a loophole in disclosure requirements but in no way interferes with otherwise permitted expenditures. In the same week that the House Election Law Committee chose to retain this bill, the Senate passed Senate Bill 33, the identical twin of HB533.

These bills in no way limit spending. What they aim to accomplish, consistent with New Hampshire law and practice, is to require disclosure.

The leading opponent of this bill tried to assert that a court decision, issued three years before the Citizens United decision that changed many of the ground rules about campaign finance, was relevant to HB533 and SB 33.

The Wisconsin Right to Life (WRTL) case was interesting but irrelevant to HB533 because it did not address in any way the disclosure law. It did narrow the ban on corporate spending, but that narrowing is now meaningless since the ban was completely eliminated by Citizens United. Attempts have been made in the last 10 years to conflate spending and disclosure and those attempts have been dismissed by the courts.

But don’t take my word for it. The following are excerpts of the Brennan Center for Justice analysis.

In WRTL, the court addressed only Section 203 of the Bipartisan Campaign Reform Act, which “ma[de] it a federal crime for any corporation to broadcast, shortly before an election, any communication that names a federal candidate for elected office and is targeted to the electorate.” It held that because the ban infringed on the freedom of speech, it could only be applied to ads that contained “express advocacy or its functional equivalent.”

WRTL narrowed only the corporate spending ban; it did not address the separate law requiring disclosure of the funding behind ads aired shortly before the election. The word “disclosure” does not appear in either of the two opinions that formed the court’s majority.

Three years after WRTL was decided, Citizens United upheld the federal disclosure and disclaimer laws that require transparency of funding sources for ads that mention a candidate shortly before elections, and specifically rejected the plaintiff’s attempts to use WRTL to support its disclosure argument.

The Court of Appeals for the First Circuit, other courts and scholars have recognized that it is improper to use WRTL as the basis for arguing that disclosure requirements are unconstitutional, and that Citizens United upheld disclosure requirements:

WRTL was completely superseded by Citizens United that made clear the difference between spending bans and disclosure.

These bills before the News Hampshire Legislature do not limit spending, but do require disclosure so that New Hampshire voters can know who is financing the campaigns of our elected officials.

Could it be that the reason for retaining HB533 is that the House committee would rather support a Senate bill where the prime sponsor is a Republican, than the identical House bill where the prime sponsor is a Democrat? I hope I am wrong.

Democrat Marjorie Smith represents Durham in the New Hampshire House.