disclosure laws needed to ensure transparency in judicial elections

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1 Center or American Progress | Disclosure Laws Needed to Ensure Transparency in Judicial Elections

Disclosure Laws Needed to Ensure

Transparency in Judicial ElectionsBilly Corriher October 16, 2012

Tis report is the rst in a series on dierent policies that could help mitigate the inuence o

corporate campaign cash in judicial elections. Te reports are intended or advocates or legisla-

tors who want to ensure our justice system works or everyone, not just those with enoughmoney to donate.

As his years elecion approaches, poliical atack ads are ooding he airwaves, ueled

by unprecedened sums o money rom corporaions and wealhy individuals unding

independen poliical ads.1 Much o he money is unneled hrough nonpro organi-

zaions ha do no disclose heir donors.2

In Augus 2012 he Cener or American Progress issued a repor on how campaign

donaions rom big business have come o dominae judicial elecions, resuling in cours

ha avor corporaions over individual ciizens.3

Our new repor concludes wih recom-mendaions or srong rules ha require reporing o all ads ha menion candidaes,

including inormaion on hose who gave money o independen spenders. Saes should

also respond o Ciizens Unied by requiring corporaions engaged in poliical spending o

disclose ha inormaion o heir shareholders.

Alhough disclosure laws usually apply o elecions or all branches o governmen, hese

recommendaions were made specically wih judicial campaigns in mind. Judicial elec-

ions involve unique ineress ha make he need or ransparency in campaign nance

even greaer han in oher elecions.

In a series o cases sriking down campaign nance reorm laws, ederal cours have

opened he door o unlimied poliical spending by osensibly independen groups.4

Te U.S. Supreme Cour in Ciizens Unied v. Federal Elecion Commission overruled a

1990 case ha hwared an atemp by he Michigan Chamber o Commerce, a non-

pro corporaion under Michigan law, o spend is general reasury unds on poliical

ads in he local newspaper. Since 2000 he organizaion has become a major player in


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judicial races, having purchased $8.3 million in ads or Michigan Supreme Cour candi-

daes$8.3 million, which was no repored under sae law.5

Te rapid rise in unlimied independen spending is even more alarming when he poli-

icians in quesion are judges, who are supposed o be rue o he law, no o campaign

conribuors. Voers are no surprised when legislaors are responsive o heir campaign

donors, bu in a courroom, ordinary ciizens should sand on he same ooing ashose mos powerul in our sociey. Jusice is supposed o be blind, bu polls sugges

Americans are concerned ha campaign cash will inuence judges rulings.6

In his dissen in Ciizens Unied, U.S. Supreme Cour Jusice John Paul Sevens said he

majoriys decision unleashes he oodgaes o corporae and union general reasury

spending in judicial elecions. He worried ha Saes ... may no longer have he abiliy

o place modes limis on corporae elecioneering even i hey believe such limis o be

criical o mainaining he inegriy o heir judicial sysems.7 Jusice Sevenss warning

seemed prescien when he Supreme Courwihou a hearing or oral argumen

hrew ou Monanas law requiring corporaions o regiser as poliical acion commi-ees in order o air poliical ads.8

In Ciizens Unied, a ve-jusice majoriy swep aside Jusice Sevenss concerns and

held ha resricions on corporae elecioneering violae he Firs Amendmen. Te U.S.

Supreme Cour ruled ha independen expendiures by corporaions do no give rise o

corrupion or he appearance o corrupion.9 Te Cours decision resed on he premise

ha more poliical speech, even corporae speech, means more inormaion or voers.10

In he same vein, Ciizens Unied upheld disclosure requiremens in ederal campaign

nance law. Jusice Anhony Kennedy said disclosure enables he elecorae o makeinormed decisions and give proper weigh o dieren speakers and messages.11 Tus

Ciizens Unied guted resricions on corporae elecioneering and le disclosure as he

only possible check on corporae poliical power.12 Several circui cours have relied on

Ciizens Unied in upholding disclosure rules.13

Wihou eecive disclosure laws, he growing ide o unlimied anonymous campaign

cash hreaens o overwhelm judicial elecions. Candidaes or sae Supreme Cours

have shatered undraising records in recen elecions, and more saes are seeing special

ineres money ood judicial elecions.14 Te gures or independen spending are hard

o discern because he saes disclosure rules vary widely. I is clear ha independen

spending has exceeded direc spending by he candidaes in many saes,15 meaning ha

special ineres groupsno he candidaesse he one o he campaigns.

One criic o sricer disclosure laws, Sen. Mich McConnell (R-KY), claims ha such

measures are an eor by he governmen isel o expose is criics o harassmen and

inimidaion.16 Te U.S. Chamber o Commerce agrees wih his assessmen, calling he


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ederal DISCLOSE Ac17 an eor o upend irrerievably core Firs Amendmen proec-

ions o poliical speech in he monhs leading up o an elecion.18 Te Supreme Cour

has repeaedly rejeced argumens ha such concerns render disclosure rules unconsi-

uional.19 Te Cour has said ha i a spender can demonsrae ha disclosure would

lead o inimidaion, hen applying he rules in ha case may be unconsiuional.20 Tus

ar, opponens o disclosure have ailed o produce any such evidence.

Disclosure is a commonsense reorm, and polls sugges he vas majoriy o ciizens

Republican and Democra alikesuppor disclosure.21 Tese rules are crucial or judi-

cial elecions because hey deermine wheher voers can nd ou who is running ads

or judicial candidaes. Jusice Sevens noed in his Ciizens Unied dissen ha a liigan

can argue ha a judge should recuse hersel or receiving campaign conribuions rom

an opposing liigan,22 bu when inormaion on campaign spending is no made public,

his righ o a rial beore an unbiased judge canno be availed.

Many saes have no ye adaped o he new campaign nance landscape. Norh Dakoa

and Indiana, or example, have no rules requiring disclosure o independen spending.Michigan has rules governing independen spending, bu hey all well shor o ull dis-

closure. Maryland, on he oher hand, reaced o Ciizens Unied by enacing rules ha

require more disclosure rom corporaions engaged in poliics.

Independent spending in Michigan Supreme Court elections, 2000-2010

$20 million in unreported spending

0 $5,000,000 $10,000,000 $15,000,000 $20,000,00

$1,376,267

$7,437,000 $8,813,267

$13,403,500$4,436,890 $17,840,390

Reported

Unreported

Democratic

independent

spenders

Republican

independent

spenders

Michigan Campaign Finance Network, $70 Million Hidden in Plain View, Appendix A, June 2011,http://www.mcn.org/pds/reports/MICFN_HiddenInPlainViewP-rev.pd


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Disclosure rules for elec tioneering communications

Federal law regulaes wo ypes o poliical spending ha are independen o candi-

daes ofcial spending. Boh ypes menion candidaes and are aired beore elecions.

Independen expendiures include ads expressly advocaing he elecion or deea o a

clearly idenied candidae.23 Ads ha all shor o express advocacy bu sill reer o can-

didaes are considered elecioneering communicaions.24 Some saes such as Vermon usehis erminology bu subjec he wo ypes o independen spending o similar disclosure

rules.25 Mos saes, including Michigan, ail o regulae elecioneering communicaions a

all, 26 even hough such ads have been regulaed a he ederal level since 2002.27

Recen elecions or he Wisconsin Supreme Cour have been overwhelmed by inde-

penden ads unded by special ineress ha do no disclose heir donors.28 Te sidebar

on page 5 discusses how a ron group or Americans or Prosperiy, a group associaed

wih he Koch brohers, has worked o elec judges who will proec he pros o he

Koch brohers and oher indusrial corporaions.

Michigan has no rules governing elecioneering communicaions. In a leter o he sae

Chamber o Commerce, he Michigan Deparmen o Sae said i had no auhoriy o reg-

ulae issue ads ha do no consiue express advocacy. Te agency old he Chamber:

Tis in no way endorses some o the so-called issue ads, which are oen more vicious

than regulated ads. Clearly, many i not most o these issue ads are campaign ads with-

out words o express advocacy. Moreover, because they are not considered expenditures,

relevant inormation, such as who paid or them, is oen not disclosed.29

By avoiding keywords such as voe or or voe agains, independen groups in Michigancan run all he poliical ads hey wan wihou disclosing who paid or hem.30

Te U.S. Supreme Cour, in a 1990 case, upheld a Michigan campaign nance law ha

required corporaions o esablish a separae accoun or purchasing poliical ads.31 Te

High Cour said Michigans ban on spending general corporae unds on poliical ads

was jusied by he saes ineres in prevening corrupion. Te Cour said, Corporae

wealh can unairly inuence elecions when i is deployed in he orm o independen

expendiures, jus as i can when i assumes he guise o poliical conribuions.32 Even

hough he Michigan Chamber o Commerce was a nonpro organizaion, he Cour

noed ha or-pro corporaions hereore could circumven he Acs resricion by

unneling money hrough he Chambers general reasury.33 When i overruled Ausin

v. Michigan Chamber o Commerce, he Supreme Cour in Ciizens Unied opened

he door o unlimied independen spending by he sae Chamber o Commerce, and

Michigan campaign nance law does no require he Chamber o repor he source o

is money, as long as i avoids he magic words ha expressly advocae voing or or

agains someone.34


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Te Michigan Campaign Finance Nework has unearhed spending daa on elecioneer-

ing communicaions or sae Supreme Cour races. Spending by he candidaes hem-

selves has skyrockeed, bu he nework ound ha such unds accouned or only 37

percen o oal spending on judicial races in he same ime period.35 O he $27 million

in independen spending rom 20002010, only 22 percen was repored o he sae.36

Te Michigan Chamber o Commerce has spen $8.3 million on ads or sae Supreme

Cour races, bu all o i has been in he orm o elecioneering communicaions, whichdo no have o be repored.37 Te public is hereore le in he dark, as millions o dol-

lars rom special ineress inuence he Michigan High Cour.38

Some saes regulae elecioneering communicaions bu narrow he caegory so much

ha i is meaningless. Illinois and Florida,39 or example, have adoped he deniion o

elecioneering communicaions ha was laid ou by he U.S. Supreme Cour in FEC v.

Wisconsin Righ o Lie.40 Te High Cour limied he deniion o include only ads ha

are suscepible o no reasonable inerpreaion oher han as an appeal o voe or or

agains a specic candidae.41 In saes ha use his deniion, elecioneering communi-

caions are dened as ads ha all shor o explicily endorsing a candidae bu canno beinerpreed as anyhing excep an appeal o voe or or agains a specic candidae.

The 2009 Wisconsin Supreme Court race saw Wisconsin Manuacturers and

Commerce spend millions on ads attacking Justice Louis Butler. Wisconsin

Manuacturers and Commerce also published a brochure attacking Butler

or voting or plaintis who sue corporations. Because the ads did not

expressly advocate his deeat, Wisconsin Manuacturers and Commerce

did not have to disclose its donors.1

Butler lost, giving pro-corporate judges a slim majority. The new court

voted 4-3 to reject a widows lawsuit against a company whose asbestos-

laden products may have killed her husband.2

In 2005, Koch Industries purchased Georgia Pacicthe target o more than

340,000 asbestos lawsuits rom plaintis who developed cancer or lung dis-

ease.3 By purchasing Georgia Pacic, Koch assumed these liabilities, and thus,

it had an interest in how the law o asbestos liability developed.

A group aliated with the Koch brothers Americans or Prosperity spent

heavily in the bitter 2011 Wisconsin high court election. The group ran is-

sue ads which did not trigger Wisconsins disclosure rules. 4

The groups money helped ensure the court remained in the hands o

justices who avor corporations over injured plaintis. The Kochs may ha

spent big to infuence the court, but plaintis suing the corporation may

never know.

1 Viveca Novak, Under the Inuence, The American Prospect, September 19 , 2011, available at http://prospect.org/article/under-inuence.

2 Tatera v. FMC Corp., 786 N.W.2d 810 (2010).

3 John Aloysius Farrell, Kochs Web o Inuence, Center or Public Integrity, April 6, 2011 , available at httpwww.publicintegrity.org/2011/04/06/3936/kochs-web-inuence.

4 Novak, Under the Inuence; Lisa Graves, Group Called Citizens or a Strong America Operatesout o a UPS Mail Drop but Runs Expensive Ads in Supreme Court Race?, Center or Mediaand Democracy, April 2, 2011, available at http://www.prwatch.org/news/2011/04/10534/group-called-citizens-strong-america-operates-out-ups-mail-drop-runs-expensive-ad.


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Disclosure rules for donors to independent spenders

Mos saes ha require he reporing o independen spending also require inormaion on

hose donaing money oward such expendiures. Wihou such inormaion, ciizens have

o search elsewhere o nd he ulimae source o money or independen spending. Mos

poliical spenders organized under Secion 501(c)(4) o he Inernal Revenue Code do no

disclose heir donors.42 Sae laws should require inormaion on he source o unding orindependen spending so ha ciizens know whose money is inuencing heir elecions.

Several saes have lower disclosure sandards or elecioneering communicaions. Wes

Virginia ighened is disclosure rules aer a coal company execuive spen $3 million o

inuence an elecion o he sae Supreme Cour, where he company had a $50 million

case pending.43 Te sae now requires donor inormaion or independen expendiures

greaer han $250. Te hreshold or reporing elecioneering communicaions dona-

ions, however, is $1,000.44 Norh Carolina has he same high sandard or elecioneer-

ing communicaions bu requires disclosure o hose donaing more han $100 oward

independen expendiures.45

Saes should no have lower hresholds or elecioneeringcommunicaions because he public probably sees litle dierence beween he wo. Boh

ypes o ads menion candidaes and are aired in he weeks beore an elecion.

Some saes require ha inormaion on donors be included in he ads. Te sae o

Washingon saw is 2006 judicial elecions ooded wih $2.6 million in independen

spendingmore money han he saes judicial candidaes had ever spen in a single

elecion.46 Te vas majoriy o his money came rom consrucion and real esae iner-

es groups.47 Aer his explosion in special ineres spending, Washingon sae amended

is disclosure rules o require ha any independenly unded ads lis he sponsor and he

op ve conribuors.48

Alaska, Norh Carolina, and Caliornia also require ha such adsinclude inormaion on he spenders op donors.49

Since much o he money is roued hrough nonpro organizaions ha are no

required o disclose heir donors, some saes impose heir own rules on ederally

regisered nonpros engaged in independen spending on sae elecions. Connecicu

law saes ha when an organizaion regisered under Secions 501(c) or 527 o he

Inernal Revenue Code makes an independen expendiure, he ad mus lis he op ve

conribuors.50 While Norh Dakoa has no rules governing independen expendiures,

i does require any 527 organizaions ha purchase poliical ads o repor hose unders

conribuing more han $200 each.51


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As wih direc conribuions o candidaes, many saes require disclosure o he

employer and occupaion o hose donaing o independen spenders.52 Oher saes,

including Alabama and Uah, do no require his inormaion. Knowledge o donors

occupaion is imporan because i allows voers o know which indusries avor or

oppose he candidaes.

Campaign finance disclosure laws in the United States

Rules or independent spending

No disclosure rules for independent spending

Disclosure of independent expenditures only

Disclosure of independent expenditures and electioneering communications

Disclosure of independent expenditures and corporate sponsorship

Disclosure of independent expenditures and "Top Donor" disclaimer

*Data or two o these states, New York and Delaware, are based on new state laws that will be in efect in uture elections. N.Y. Comp. Codes R. & Regs. tit. 9, 6200.10 (proposed Jan. 21, 2012);15 Del. C. 8001-8046.

Source: Authors analysis o state statutes.


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Disclosure rules for corporate independent spending

Since he U.S. Supreme Cours 2010 decision in Ciizens Unied, many saes have

updaed heir campaign nance laws o impose ougher requiremens on corporaions.

Jusice Kennedys opinion in Ciizens Unied approved o disclosure rules or corporae

poliical spending:

[P]rompt disclosure o expenditures can provide shareholders and citizens with the

inormation needed to hold corporations and elected ofcials accountable or their posi-

tions and supporters. Shareholders can determine whether their corporations politi-

cal speech advances the corporations interest in making prots, and citizens can see

whether elected ofcials are in the pocket o so-called moneyed interests.53

Maryland law says ha an independen spender mus do one o wo hings: Firs, i he

eniy issues periodic repors o is shareholders, members, or donors, i can include

inormaion on is independen spending in such repors; or second, i can pos a link

on is homepage o he sie where is independen spending repors can be accessed.54

Campaign nance reorm advocaes have praised he Maryland legislaion. Te presi-

den o he Maryland Chamber o Commerce, however, criicized hese rules as unnec-

essary and onerous, and he alleged ha hey were clearly designed o discourage

eniies rom making independen expendiures.55

Connecicu requires deailed disclaimer rules or corporae independen expendiures.

Any ads ha promoe he success or deea o any candidae mus include he name

o he corporaion, is chie execuive ofcer, and is address.56 Many saesincluding

Arizona, Iowa, and Missourirequire corporaions o repor ha heir board o direc-

ors approved any poliical spending.57

Corporae poliical spending mus be disclosed o he public so ha ciizens can know

o whom hese eleced judges will be responsive.58 Judges will likely hear cases involv-

ing corporaions acive in heir saes, and, wihou robus disclosure, a liigan may no

know ha an opposing corporae pary spen huge sums o money o elec he judges

hearing he case.

Disclosure rules for last-minute contributions

Any eecive disclosure sysem includes a requiremen ha independen spenders

disclose las-minue expendiures and conribuions (i.e., hose occurring aer he las

campaign nance repor is led). Wih he adven o elecronic ling, many saes now

require reporingwihin 24 hours or 48 hourso conribuions and expendiures

ha occur in he nal days beore an elecion. Wihou promp las-minue disclosure,

ciizens will have no idea who is unding independen ads unil aer he elecion.


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Virginia mandaes ha all independen expendiures be repored wihin 24 hours.59

Uah has a similar rule or elecioneering communicaions.60 Mos saes, however,

only impose such igh deadlines in he days or weeks preceding an

elecion.

In Pennsylvania, or example, any conribuion o or expendiure by

an independen spender in he 14 days prior o an elecion mus bedisclosed wihin 24 hours.61 Caliornia requires 24-hour reporing

or independen expendiures aer Ocober 31 o an elecion year.62

Souh Dakoa, Nebraska, and Missouri mandae 48-hour reporing or

lae independen spending.63

Saes such as Arkansas and Nevada have no rules on reporing lae

independen spending.64 In hese saes, any independen spend-

ing in he las week o a campaign will no be repored unil aer he

elecion. As a consequence, ciizens lack inormaion ha could prove

useul in he voing booh.

Conclusion

Saes have sruggled o keep up wih he drasic changes in cam-

paign nance wrough by he U.S. Supreme Cours recen cases, and

he sandards or disclosure o independen spending have diverged

widely. Tis years judicial elecions could see unprecedened indepen-

den spending, as he rs super PACs have been creaed or judicial

races.65

Tis makes he need or robus disclosure rules even more imperaive.

Some saes have sough o shed ligh on he opaque arrangemens beween corpora-

ions, poliical organizaions, and nonpros. Norh Carolina prohibis esablishing

more han one 527 group wih he inen o evade he saes disclosure rules,66 bu

proving he requisie inen migh be difcul. Saring in 2013 Delaware will insiue a

new rule governing donaions greaer han $100 rom corporaions or oher eniies o

independen spenders. Te independen spenders will have o repor anyone who owns

a legal or equiable ineres o 50 percen or greaer in he conribuing organizaion.67

Because o he unique ineress involved in judicial elecions, saes should consider spe-

cic disclosure rules ha govern conribuions and independen expendiures in hese

races. exas limis conribuions rom law rms o judicial candidaes.68 Furher, many

saes require judges o disclose any campaign donaions received by liigans in heir

courrooms.69 Saes should consider addiional disclosure or lawyers and law rms

donaing o judicial campaigns and or independen spenders running ads supporing or

opposing judicial candidaes. Disclosure rules could require law rms donaing oward

Policy options: Campaign financ

disclosure in judicial elections

Require reporting o independent expenditure

and any other ads that reer to candidates

Ensure that campaign nance laws require

disclosure o the donors who gave money to

independent spenders, as well as the donors

occupation and employer

Demand that a corporation obtain approval rom

its board o directors or any political spending a

that it report such spending to its shareholders

Implement rules that require ads unded by cor-

porations and nonprots to list the top ve dono

Mandate that contributions or expenditures

occurring in the nal weeks o an election be

reported within 24 hours


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independen spending o inorm he recipien o all cases pending beore he cour he

candidae hopes o join. Te independen spender could hen repor he inormaion

o he sae. Tis would allow liigans o know wheher an opposing pary has donaed

money o a judge, allowing hem o raise he conico ineres issue a rial.

As in oher elecions, independen spending on judicial races is beginning o exceed

he money spen by he campaigns.70 Tis rend shows no signs o abaing. Robusdisclosure rules or independen spending have never been more imporan. Te policy

opions we sugges are inended o illusrae wha a srong disclosure sysem migh

include, bu each sae mus implemen is own campaign nance rules, aking ino

accoun a number o acors, including he cos o adverising and poliical characeris-

ics. (see box)

One hing is rue hroughou all he saes: Wih he ederal regulaory agency paralyzed

by parisan inghing,71 i alls o sae agencies o ake a ough approach o enorcing

campaign nance laws.

Billy Corriher is the Associate Director o Research or Legal Progress at the Center or

American Progress.


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1 Aviva Shen, Outside Spending has Already SurpassedEntire 2008 Election Cycle, ThinkProgress, September7, 2012, available at http://thinkprogress.org/jus-tice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/.

2 Spencer MacColl, Citizens United Decision Prooundly A-

ects Political Landscape (Washington: Center or Respon-sive Politics, 2011), available at http://www.opensecrets.org/news/2011/05/citizens-united-decision-prooundly-aects-political-landscape.html. MacColl ound that the percentageo independent spending rom anonymous donors roserom 1 percent in 2006 to 47 percent in 2010, and thatspending by 501(c) nonprots increased rom 0 percent ototal independent spending to 42 percent in the same timeperiod.

3 Billy Corriher, Big Business Taking Over State SupremeCourts (Washington: Center or American Progress, 2012),available at http://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courts.

4 Josh Isreal, Two-Year Anniversary o SpeechNow.org v. FECRuling, ThinkProgress, March 26, 2012, available at http://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-o-speechnoworg-v-ec-ruling.

5 For a list o expenditures or television electioneeringads, which are not reported under state law, see MichiganCampaign Finance Network, $70 Million Hidden in PlainView: Michigans Spectacular Failure o Campaign FinanceDisclosure, 2000-2010, available at http://www.mcn.org/pds/reports/MICFN_HiddenInPlainViewP-rev.pd.

6 Joan Biskupic, Supreme Court Case with the Feel o aBest Seller, USA Today, February 16, 2009, available athttp://www.usatoday.com/news/washington/2009-02-16-grisham-court_N.htm. Biskupic discusses a poll nding that89 percent o respondents said they believe the inuenceo campaign contributions on judges rulings is a problem;Justice at Stake, Solid Bipartisan Majorities Believe JudgesInuenced by Campaign Contributions (2010), available athttp://www.justiceatstake.org/newsroom/press_releases.cm/9810_solid_bipartisan_majorities_believe_judges_in-uenced_by_campaign_contributions?show=news&newsID=8722. This article discusses a poll that ound that 70

percent o Democrats and Republicans believed campaigndonations have a signicant impac t on judges rulings.

7 Citizens United v. Federal Election Commission, 130 S. Ct.876, 968 (2010).

8 American Tradition Partnership, Inc., v. Bullock, 567 U.S. ___(June 25, 2012).

9 Citizens United v. Federal Election Commission.

10 Citizens United v. Federal Election Commission. Bysuppressing the speech o maniold corporations, bothor-prot and nonprot, the Government prevents theirvoices and viewpoints rom reaching the public and advis-ing voters on which persons or entities are hostile to theirinterests.

11 Citizens United v. Federal Election Commission.

12 Ibid; The Eighth Circuit Court o Appeals recently ruled

unconstitutional a Minnesota law requiring a corporationor association to le certain reports i it makes independentexpenditures. The court said the law applied to a broaderrange o communications than the rules u pheld in CitizensUnited. In that case, the dissent argued the majorityunderestimate[s] the states interests in disclo sure laws andoverestimate[s] the burdens those laws impose on speec h.The dissent noted that Citizens United held that the votingpublic has a right to know where the money is comingrom; see Minnesota Citizens Concerned or Lie, Inc., v.Swanson, No. 10-3126 (8th Cir. Sept. 5, 2012).

13 SpeechNow.org v. FEC, 599 F.3d 686, 696-98 (D.C. Cir. 2010);Family PAC v. McKenna, Nos. 10-35832, 10-35893 (9th Cir.Dec. 29, 2011); National Org. or Marriage, Inc. v. Secy, No.11-14193 (11th Cir. May 17, 2012); The Real Truth aboutAbortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. June 12, 2012);National Org. or Marriage v. McKee, 649 F.3d 34 (1st Cir.2011); Human Lie o Wash. Inc. v. Brumsickle, 624 F.3d 34

(1st Cir 2011); Center or Individual Freedom v. Madigan, No.11-3693 (7th Cir. Sept. 10, 2012).

14 Corriher, Big Business Taking Over State Supreme Courts.

15 Erwin Chemerinsky and James Sample, You Get the JudgesYou Pay For, New York Times, April 17, 2011, available athttp://www.nytimes.com/2011/04/18/opinion/18sample.html?_r=2 .

16 U.S. Chamber o Commerce, McConnell discloses the truthabout DISCLOSE Act, available at http://www.uschamber.com/eed/mcconnell-discloses-truth-about-disclose-act .

17 Democracy is Strengthened by Casting Light on Spendingin Elections Act, H.R. 5175 328.

18 Letter rom the U.S. Chamber o Commerce Opposing H.R.5175, May 20, 2010, available at http://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democra-

cy-strengthened-casting-light-spending-elections.

19 Buckley v. Valeo, 424 U.S. 1 (1976); McConnell v. FEC, 540U.S. 93 (2003).

20 Ibid; Citizens United v. FEC.

21 Ron Faucheux, U.S. Voters: Congress is Selsh aboutCampaign Finance, The Atlantic, July 16, 2012, availableat http://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selsh-about-campaign--nance/259812/; Justice at Stake, Solid Bipartisan MajoritiesBelieve Judges I nuenced by Campaign Contributions.

22 Justice Stevens was reerring to Caperton motions. InCaperton v. Massey Coal, Inc., 129 S. Ct. 2252 (2009), the U.S.Supreme Court ound that a liti gants due process rightswere violated when an opposing litigant donated $3 milliontoward independent spending on behal o a candidate orthe West Virginia Supreme Court. The donor spent mo re

money than the candidates own campaign, and the can-didate won a seat on the bench. The justice then cast thedeciding vote, striking down a $50 milli on verdict againstthe donors company. The U.S. Supreme Court held that thejustice should have recused himsel.

23 Federal Election Commission, Coordinated Communicationsand Independent Expenditures, June 2007 (updated Febru-ary 2011) http://www.ec.gov/pages/brochures/indexp.shtml.

24 Federal Election Commission, Electioneering Communi-cations(2010), available athttp://www.ec.gov/pages/brochures/electioneering.shtml.The U.S. Supreme Courthas limited this category to ads that are susceptible o noreasonable interpretation other than as an appeal to voteor or against a specic c andidate. The Court narrowed thedenition so that restrictions on electioneering communi-cations do not violate the ree speech rights o corporations,but the case did not deal with disclosure rules; see FEC v.Wisconsin Right to Lie, I nc., 551 U.S. 449, 470 (2007).

25 17 V.S.A. 2893.

26 Robert M. Stern, Sunlight State by State Ater CitizensUnited (Corporate Reorm Coalition, 2012), available athttp://www.citizen.org/documents/sunlight-state-by-state-report.pd.

27 Bipartisan Campaign Reorm Act, Public Law 155, 107thCong., (March 27, 2002).

Endnotes
http://thinkprogress.org/justice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/http://thinkprogress.org/justice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/http://thinkprogress.org/justice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/http://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.htmlhttp://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.htmlhttp://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.htmlhttp://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courtshttp://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courtshttp://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courtshttp://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-of-speechnoworg-v-fec-rulinghttp://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-of-speechnoworg-v-fec-rulinghttp://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-of-speechnoworg-v-fec-rulinghttp://www.mcfn.org/pdfs/reports/MICFN_HiddenInPlainViewP-rev.pdfhttp://www.mcfn.org/pdfs/reports/MICFN_HiddenInPlainViewP-rev.pdfhttp://www.usatoday.com/news/washington/2009-02-16-grisham-court_N.htmhttp://www.usatoday.com/news/washington/2009-02-16-grisham-court_N.htmhttp://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.nytimes.com/2011/04/18/opinion/18sample.html?_r=2http://www.nytimes.com/2011/04/18/opinion/18sample.html?_r=2http://www.uschamber.com/feed/mcconnell-discloses-truth-about-disclose-acthttp://www.uschamber.com/feed/mcconnell-discloses-truth-about-disclose-acthttp://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democracy-strengthened-casting-light-spending-electionshttp://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democracy-strengthened-casting-light-spending-electionshttp://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democracy-strengthened-casting-light-spending-electionshttp://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selfish-about-campaign-finance/259812/http://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selfish-about-campaign-finance/259812/http://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selfish-about-campaign-finance/259812/http://www.fec.gov/pages/brochures/indexp.shtmlhttp://www.fec.gov/pages/brochures/indexp.shtmlhttp://www.fec.gov/pages/brochures/electioneering.shtmlhttp://www.fec.gov/pages/brochures/electioneering.shtmlhttp://www.citizen.org/documents/sunlight-state-by-state-report.pdfhttp://www.citizen.org/documents/sunlight-state-by-state-report.pdfhttp://www.citizen.org/documents/sunlight-state-by-state-report.pdfhttp://www.citizen.org/documents/sunlight-state-by-state-report.pdfhttp://www.fec.gov/pages/brochures/electioneering.shtmlhttp://www.fec.gov/pages/brochures/electioneering.shtmlhttp://www.fec.gov/pages/brochures/indexp.shtmlhttp://www.fec.gov/pages/brochures/indexp.shtmlhttp://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selfish-about-campaign-finance/259812/http://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selfish-about-campaign-finance/259812/http://www.theatlantic.com/politics/archive/2012/07/us-voters-congress-is-selfish-about-campaign-finance/259812/http://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democracy-strengthened-casting-light-spending-electionshttp://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democracy-strengthened-casting-light-spending-electionshttp://www.uschamber.com/issues/letters/2010/letter-opposing-hr-5175-democracy-strengthened-casting-light-spending-electionshttp://www.uschamber.com/feed/mcconnell-discloses-truth-about-disclose-acthttp://www.uschamber.com/feed/mcconnell-discloses-truth-about-disclose-acthttp://www.nytimes.com/2011/04/18/opinion/18sample.html?_r=2http://www.nytimes.com/2011/04/18/opinion/18sample.html?_r=2http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.justiceatstake.org/newsroom/press_releases.cfm/9810_solid_bipartisan_majorities_believe_judges_influenced_by_campaign_contributions?show=news&newsID=8722http://www.usatoday.com/news/washington/2009-02-16-grisham-court_N.htmhttp://www.usatoday.com/news/washington/2009-02-16-grisham-court_N.htmhttp://www.mcfn.org/pdfs/reports/MICFN_HiddenInPlainViewP-rev.pdfhttp://www.mcfn.org/pdfs/reports/MICFN_HiddenInPlainViewP-rev.pdfhttp://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-of-speechnoworg-v-fec-rulinghttp://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-of-speechnoworg-v-fec-rulinghttp://thinkprogress.org/justice/2012/03/26/451808/two-year-anniversary-of-speechnoworg-v-fec-rulinghttp://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courtshttp://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courtshttp://www.americanprogress.org/issues/civil-liberties/report/2012/08/13/11974/big-business-taking-over-state-supreme-courtshttp://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.htmlhttp://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.htmlhttp://www.opensecrets.org/news/2011/05/citizens-united-decision-profoundly-affects-political-landscape.htmlhttp://thinkprogress.org/justice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/http://thinkprogress.org/justice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/http://thinkprogress.org/justice/2012/09/07/811411/outside-spending-has-already-surpassed-entire-2008-election-cycle/


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28 Viveca Novak, Under the Inuence, The American Prospect,September 19, 2011, available at http://prospect.org/article/under-inuence.

29 Letter rom Brian DeBano, Michigan Department o State, toRobert S. Labrant, Michigan Chamber o Commerce, April20, 2004, available at http://www.michigan.gov/docu-ments/2004_126239_7.pd.

30 For example, one unreported Michigan judicial ad claimedan incumbent judge who was up or reelection had beenvoted the worst judge on the State Supreme Court. SeeAnnenberg Public Policy Center, The Case o the Sleep -

ing Justice (2008), available at http://www.actcheck.org/2008/11/the-case-o-the-sleeping-justice; MichiganCompiled Laws 169.229 & 169.233(3). These laws outlinethe requirements or campaigns and political committeesto disclose inormation on campaign contributions andindependent expenditures.

31 Austin v. Michigan Chamber o Commerce, 494 U.S. 652(1990).

32 Ibid.

33 Ibid.

34 Certain laws in Michigan require an independent expendi-ture report to include the name, address, occupation, em-ployer, and principal place o business o each person whocontributed $100.01 or more to the expenditure. Michigandoes not regulate electioneering communications, onlyads which use words that constitute express advocacy; see

Michigan Compiled Laws 169.251; letter rom DeBano toLabrant.

35 Michigan Campaign Finance Network, $70 Million Hiddenin Plain View: Michigans Spectacular Failure o CampaignFinance Disclo sure, 2000-2010.

36 Ibid.

37 Ibid; National Institute on Money in State Politics,Noteworthy Contributor Summary, Michigan Chamber oCommerce, available at http://www.ollowthemoney.org/database/topcontributor.phtml?u=17295&y=0. This reportlists donations totaling $49,805 to Justice Taylor, $46,058to Justice Markman, $41,073 to Justice Young, $20,125 toJustice Corrigan, $15,080 to Justice Weaver, and $10,000 toJustice Mary Beth Kelly.

38 Michigan Campaign Finance Network, $70 Million Hiddenin Plain View: Michigans Spectacular Failure o CampaignFinance Disclo sure, 2000-2010.

39 Floridas rules on independent spending make little sense.The vast majority o independent ads in Florida are election-eering communications; see Kevin McNellis, IndependentSpending In Florida, 2006-2010 (Helena, Montana: NationalInstitute on Money in State Politics, 2011), available athttp://www.ollowthemoney.org/press/ReportView.phtml?r=466. State law imposes no contribution limits orelectioneering communications and permits sponsors osuch ads to collaborate with candidates; a statute outlinescontribution limits or political committees, which do notinclude electioneering communications organizations;see Fla. Stat. 106.08(1)(a). Another Florida statute denesElectioneering Communications and omits the provision[ound in other statutory denitions] that such expenditurescannot be coordinated with candidates or their campaigns.I an independent spender can coordinate with the cam-paign, the spending is not actuall y independent; see Fla.Stat. 106.011(18)(A).

40 10 Ill. Compiled Stat. 5/9-1.14; Fla. Stat. 106.011(18)(a).

41 FEC v. Wisconsin Right to Lie, Inc., 551 U.S. 449, 470 (2007).This case did not deal with disclosure rules, which the HighCourt has consistently upheld. Thus the U.S. Constitutiondoes not require states to limit their disclosure rules to adsthat satisy this limited denition. See Center or Individua lFreedom v. Madigan, No. 11-3693, 34-35 (7th Cir. Sept. 10,2012), which states that, Citizens United made clear thatthe wooden distinction between express advocacy andissue discussion does not apply in the disclosure context... . [M]andatory disclosure requirements are constitution-

ally permissible even i ads contain no direct candidateadvocacy.

42 Josh Israel, Conservative Group Ignores Court Order Requir-ing it to Disclose Donors Behind T V Ads, ThinkProgress,September 14, 2012, available at http://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclose.

43 Caperton v. Massey Coal, Inc.

44 W. Va. Code 3-8-2b(b) & (c); W. Va. Code 3-8-2(b)(1).

45 N.C. Gen. Stat. 163-278.12(c); N.C. Gen. Stat. 163-278.12C(a)(5). See also N.C. Gen. Stat. 163-278.101(b)(5).

46 National Institute on Money in State Politics, NationalOverview Map, Washington, 2006 available at http://www.ollowthemoney.org/database/nationalview.phtml?l=0&=J&y=2012&abbr=0.

47 Ibid.

48 Rev. Code Wash. (ARCW) 42.17A.320(4) & (5).

49 An Alaska statute requires a disclaimer with the top threedonors to independent spending entities; see Alaska Stat. 15.13.090. North Carolina requires independently undedprint ads to include the names o the spenders top vedonors rom the past six months; see N.C. Gen. Stat. 163-278.39(a)(7) & (8). I radio or TV ads are unded by a cor-poration that promotes social, education, or political ideas,the state requires the corporation to disclose its name and

inormation on where to nd its donors; see N.C. Gen. Stat. 163-278.39A(b)(5) & (7). Caliornia requires independentlyunded ads to name the top two contributors (i the contri-butions add up to more than $50,000); see Cal. Gov. Code 84506(a)(2).

50 Conn. Gen. Stat. 9-621(h).

51 N.D. Cent. Code, 16.1-08.1-03.12.

52 For example, Pennsylvania requires those engaging in inde-pendent expenditures to report the name, employer, andoccupation o donors who give more than $250; see 25 P.S. 3246(g). Nebraska requires that those making indepen-dent expenditures report the name, address, occupation,employer, and place o business o donors who gave morethan $250 or the expenditure; see R.R.S. Neb. 49-1467.

53 Citizens United v. FEC.

54 The Maryland law is similar to one version o the ederal

DISCLOSE Act, but the ederal bill would require corpora-tions to both disclose independent spending to theirshareholders and post a link to their FEC reports; see Md.Election Law Code Ann. 13-306(j), 13-307(j); Democracyis Strengthened by Casting Light on Spending in ElectionsAct, H.R. 5175 328; Reorm advocates say spenders w illexploit a provision o the Maryland law which, similar toederal regulations, limits disclosure to contributions madeor the purpose o ur thering independent spending; DanFroomkin, Maryland To Require Companies To Post Electio nSpending Online, Hufngton Post, April 25, 2011, availableat http://www.hufngtonpost.com/2011/04/25/maryland-campaign-nance-reorm_n_853431.html.

55 Froomkin, Maryland To Require Companies To Post ElectionSpending Online.

56 Conn. Gen. Stat. 9-621(h)(1).

57 A.R.S. 16-914.02(B) & (E); Iowa Code 68A.404(2)(a) & (5)

(g); R.S.Mo. 130.029(1).

58 In its seminal campaign nance case, the U.S. SupremeCourt said disclosure l aws alert the voter to the intereststo which a candidate is most likely to be responsive andthus acilitate predictions o uture perormance in ofce.Buckley v. Valeo, 424 U.S. 1, 67 (1976).

59 Va. Code Ann. 24.2-945.2(B).

60 Utah Code Ann. 20A-11-901(2)(a).
http://prospect.org/article/under-influence.http://prospect.org/article/under-influence.http://www.michigan.gov/documents/2004_126239_7.pdfhttp://www.michigan.gov/documents/2004_126239_7.pdfhttp://www.factcheck.org/2008/11/the-case-of-the-sleeping-justicehttp://www.factcheck.org/2008/11/the-case-of-the-sleeping-justicehttp://www.followthemoney.org/database/topcontributor.phtml?u=17295&y=0http://www.followthemoney.org/database/topcontributor.phtml?u=17295&y=0http://www.followthemoney.org/press/ReportView.phtml?r=466http://www.followthemoney.org/press/ReportView.phtml?r=466http://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclosehttp://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclosehttp://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclosehttp://www.followthemoney.org/database/nationalview.phtml?l=0&f=J&y=2012&abbr=0http://www.followthemoney.org/database/nationalview.phtml?l=0&f=J&y=2012&abbr=0http://www.followthemoney.org/database/nationalview.phtml?l=0&f=J&y=2012&abbr=0http://www.huffingtonpost.com/2011/04/25/maryland-campaign-finance-reform_n_853431.htmlhttp://www.huffingtonpost.com/2011/04/25/maryland-campaign-finance-reform_n_853431.htmlhttp://www.huffingtonpost.com/2011/04/25/maryland-campaign-finance-reform_n_853431.htmlhttp://www.huffingtonpost.com/2011/04/25/maryland-campaign-finance-reform_n_853431.htmlhttp://www.followthemoney.org/database/nationalview.phtml?l=0&f=J&y=2012&abbr=0http://www.followthemoney.org/database/nationalview.phtml?l=0&f=J&y=2012&abbr=0http://www.followthemoney.org/database/nationalview.phtml?l=0&f=J&y=2012&abbr=0http://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclosehttp://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclosehttp://thinkprogress.org/justice/2012/09/14/850231/conservative-group-ignores-court-order-disclosehttp://www.followthemoney.org/press/ReportView.phtml?r=466http://www.followthemoney.org/press/ReportView.phtml?r=466http://www.followthemoney.org/database/topcontributor.phtml?u=17295&y=0http://www.followthemoney.org/database/topcontributor.phtml?u=17295&y=0http://www.factcheck.org/2008/11/the-case-of-the-sleeping-justicehttp://www.factcheck.org/2008/11/the-case-of-the-sleeping-justicehttp://www.michigan.gov/documents/2004_126239_7.pdfhttp://www.michigan.gov/documents/2004_126239_7.pdfhttp://prospect.org/article/under-influence.http://prospect.org/article/under-influence.


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61 25 Penn. Statutes 3248.

62 Cal. Gov. Code 84203.5.

63 S.D. Codied Laws 12-27-16; R.R.S. Neb. 49-1478.01(1);R.S.Mo. 130.047.

64 Nev. Rev. Stat. Ann. 294A.210; A.C.A. 7-6-220.

65 Josh Israel, Super-PAC Trying to Buy NC Supreme CourtReelection or Pro-Corporate Conservative Justice, Think-Progress, June 4, 2012, available at http://thinkprogress.org/justice/2012/06/04/494284/super-pac-trying-to-buy-nc-

supreme-court-re-election-or-pro-corporate-conservative-justice.

66 N.C. Gen. Stat. 163-278.101(c).

67 15 Del. C. 8031.

68 Tex. Elec. Code 253.155(d).

69 For example, Tennessees judicial ethics rules require thata judge recuse himsel whenever his impartiality mightreasonably be questioned, including instances when alaw rm has made contributions or given such sup port tothe judges campaign that the judges impartiality mightreasonably be questioned; see Tennessee Canon o JudicialEthics, Canon 2, Rule 2.1. Comment 5 to this rule states thata judge must disclose on the record inormation that thejudge believes the parties or their lawyers might reasonablyconsider relevant to a possible motion or disqualication,even i the judge believes there is no basis or disqualica-tion.

70 Chemerinsky and Sample, You Get the Judges You Pay For;MacColl, Citizens United Decision Prooundly Aects Politi-cal Landscape, Center or Responsive Politics.

71 Jonathan Backer, Dysunction on Display at FEC OversightHearing (Washington: Brennan Center or Justice, 2011),available at http://www.brennancenter.org/blog/archives/gridlock_and_dysunction_on_display_at_ec_oversight_hearing.
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disclosure laws needed to ensure transparency in judicial elections

Documents