Are Minnesota Corporations On Brink Of Winning Right To Secretly Campaign?

A Minnesota ruling could ignite secret campaigning. A similar ruling in Illinois went the other way, upholding disclosure.

The right of corporations to spend money in campaigns—resurrected under the Supreme Court’s Citizens United ruling—may have been given a boost last week when a federal appeals court ruled in an ongoing suit that Minnesota corporations could independently spend money in campaigns without submitting ongoing campaign spending reports to state officials.

In contrast, on Monday in another federal appeals court, the Seventh Circuit handling Illinois, that state’s campaign disclosure law was upheld in a similar suit—foreclosing the prospect of unreported corporate electioneering in 2012 and beyond. (Each federal appeals court has the final say in its region until the U.S. Supreme Court steps in.)

The big question in Minnesota, where the appeals court remanded the case to District Court, is how far will the district court go in its soon-to-be-issued injunction allowing corporations to independently spend money without having to disclose that spending to Minnesota campaign finance regulators.

Gary Goldsmith, Executive Director of the Minnesota Campaign Finance and Public Disclosure Board, said he is awaiting that injunction—but hopes that it will only pertain to existing groups that are not active in the 2012 campaign. But some liberal reform advocates are wary, because they know the right-wing attorneys who have sued the state want to create a pathway for secretive corporate campaigning—like in 2012's presidential race. 

“A federal appeals court has provided another victory for corporate America’s efforts to influence politicians, political parties and the nation’s elections,” Jeremy Leaming, wrote on the American Constitution Society blog on Friday, referring to the Minnesota ruling. “Big business hardly needed such a victory.”

“The 8th Circuit’s decision last week striking down one aspect of Minnesota’s disclosure laws is out of step with courts throughout the rest of the nation,” said Paul S. Ryan, senior counsel with the Campaign Legal Center, striking a more tempered note. “For example, the 7th Circuit today upheld an Illinois disclosure law quite similar to the one struck down in Minnesota last week. Unfortunately, a slim majority of the 8th Circuit Court got it wrong and Minnesota voters will suffer as a result.”

How much Minnesota voters will suffer is exactly the question—and will not be known until the District Court takes up the case.

However, the appeals court ruling could have a big impact in Minnesota, where this fall people will vote on ambiguously worded state constitutional amendment drafted by right-wingers that may lead to stricter voter ID laws and create new barriers to voting. Its wording encourages lawmakers to take additional steps to verify a voter’s “eligibility,” which could not ony impede voter registration—the state has Election Day registration—but also how voter rolls are updated or purged.

The states and passions already are high in the amendment fight. Minnesota’s rightwing activists have attacked Democratic Secretary of State Mark Ritchie as partisan and sued over ballot wording. But last week’s appeal’s court decision rejecting extensive disclosure of corporate independent expenditures raises the stakes, because the District Court’s yet-to-be-issued injunction could let corporations or local conduits spend money in that fight and others without reporting it. If that were so, the ruling would be a rightwing victory.

Goldsmith said the Minnesota Campaign Finance and Public Disclosure Board was still operating under the assumption that any new political association or activity had to fulfill the state’s reporting requirements. He said the federal appeals court seemed to be mostly concerned about the reporting requirements for groups that are dormant—still on the books but not active in the current election cycle. He expected the District Court to recognize that distinction when issuing its forthcoming injunction.

However, the GOP activists and crusading attorneys that have been seeking to overcome Minnesota’s disclosure law—the same team that filed the lawsuit leading to the Supreme Court’s Citizens United ruling—are anything but moderates. James Bopp, the lead attorney and former high-ranking RNC official, has sued many states since 2010 with the intention of dismantling disclosure laws.  

“We’ll see how long it takes for the district court to act—it very well may seek further briefing from the parties on the questions of severability and the scope of any forthcoming injunction,” said the Campaign Legal Center’s Ryan, adding the appeals court upheld most of Minnesota's disclosure law, just not ongoing reporting requirements for corporations deregulated under Citizens United.

While Ryan said he does not read the appeals court ruling as one that will licence corporate political spending in Minnesota elections without any disclosure, Bopp told the Associated Press that the state should stop enforcing the state's corporate disclosure rules.  

AlterNet / By Steven Rosenfeld

Posted at September 10, 2012, 2:54pm