Should groups be allowed to mount ads in political races without telling the public who they are or how much they’re spending?
That’s what’s at issue in the Legislature this week. Lawmakers are meeting in special session to debate several spending bills and the election legislation, House Bill 219.
On Wednesday, delegates debated the bill in the House of Delegates. A vote is scheduled for Thursday.
To understand this bill, you have to go back to 2004, when a group called “And for the Sake of the Kids” ran a multi-million dollar campaign that helped defeat Supreme Court Justice Warren McGraw.
A majority of the money for “And for the Sake of the Kids” came from one man – Massey Energy CEO Don Blankenship. But that wasn’t clear to the people watching the commercials.
So in 2005, the Legislature passed a low requiring people and groups to disclose how much money they spend trying to influence political races. The next year, Blankenship spent millions trying to influence legislative races, with little success.
According to House Judiciary Chairwoman Carrie Webster, the disclosure bill is working very well.
“In 2006, we had disclosure and the voters paid attention to that disclosure. They were able to link where that money was coming from, and who was spending it,” she says.
But a Virginia-based group with conservative ties called the Center for Individual Freedom challenged the law. In April, federal judge David Faber struck down part of the law. Groups must disclose spending on radio or TV ads, but not on mass mailings, newspaper ads or other print media.
That’s because in part there’s good case law at the federal level regarding broadcast media, and not so much regarding print.
Webster says the law can be fixed by including “Legislative findings of fact” – giving evidence to bolster their case.
“Disclosure is entitled to less constitutional scrutiny than the regulation of the speech itself,” she says. “So these findings, with the evidence that will support out findings, we believe is not thumbing our nose to Judge Faber’s decision. It’s responding to it.”
Republicans like House Minority Leader Tim Armstead are trying to stop the bill. He says it’s too complicated for a special session, and in contrast to Faber’s ruling.
“In effect, are we not continuing to state that electioneering communications will include things that the Judge has specifically said we have no empirical evidence to justify us regulating?” he says.
The bill also would clarify state law so that corporations couldn’t run ads that target candidates, even indirectly. Delegate Jonathan Miller asked Webster what that means.
“If I were to structure a direct mail ad saying candidate X supports issue X, call them and give them your thoughts, would this violate this statute?” Miller asked.
Webster said it depends on the ad, the timing, lots of things. She added that it can be tricky to balance the right to free speech with the public’s right to know.