The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”. It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.” The “committee” that was really just a one-person enterprise was too “small scale,” the government’s interests too limited: the cost in the particular case exceeded the benefits.
Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates? The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections. Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). The government’s interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits. The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado’s issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.
In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time. They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld “electioneering communication” disclosure on the basis of its finding that some issue speech was a “sham.” Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.
It is not clear that in the struggles over the regulation of money in politics, reform advocates consistently put much stock in the election/issue distinction. As they define the problem of the disproportionate political influence that money can buy, there is no obvious reason why they would. Jane Mayer in the most recent The New Yorker concedes that Super PACs funded by billionaires have paid a pitiful return on donors’ investment, but she contends that this is only part of the story. The Koch brothers’ spending strategy has encompassed far more than intervention in the electoral process. Mayer writes that the Kochs have also looked to “lobbying, think tanks, academic programs, and grassroots lobbying groups that inject their ultra-free-market ideas into the American mainstream.” So their success cannot be judged only by what comes of the Super PAC era (and she suggests that these PACs could still have significant effect on the general election).
In prior years, the concern with well-paid and influential issue speech found its way into reform programs. The 1995 debate on lobbying reform included proposals to subject to disclosure certain expenditures for the “grassroots lobbying” of the public on pending legislation. A provision for this disclosure was rejected by amendment on the floor, but there has remained support for a requirement like this. Today, some of the “dark money” argument directed against (c)(4) tax-exempts may have in them traces, or large doses, of this objective. For the most part, however, the case for the disclosure of tax-exempt and other issues funding is built on the phoniness of the speech, on its function as camouflaged electoral advocacy.
So far this is how the argument will go: issue speech is different, but some of it is not really issues speech. Maybe the argument itself is really about something else. Somewhere in these claims is the view, rarely expressed at the federal level, that, where it serves the interests of great wealth, at least some funding of issue speech should be included in mandatory reporting requirements. It is a view and program that may be pressed more openly in the future.