How the fight over Minnesota campaign finance disclosure requirements may shape the fate of the state’s marriage amendment 

by Stephanie Bitto

The Minnesota Campaign Finance and Public Disclosure Board’s October clarification of Minnesota campaign finance laws may have quite an impact on a hot topic at issue in the 2012 election.

In 2012, Minnesota voters will be asked to approve an amendment to the Minnesota constitution that declares marriage as solely the union of one man and one woman. The Minnesota House and Senate passed a bill in May 2011 proposing the amendment. Governor Dayton issued a symbolic veto of the bill on May 25, 2011, but as constitutional amendment legislation cannot be vetoed, it will be up to the voters to determine the amendment’s fate.

The Minnesota Campaign Finance and Public Disclosure Board has been working to adjust its policies to comply with the new campaign disclosure laws passed in 2010. The laws increased reporting and disclosure requirements for electoral contributions and banned corporations from making direct contributions to candidates and political parties, a move that has since been the subject of contentious litigation.

On October 4, 2011, the Campaign Finance and Public Disclosure Board issued a Statement of Guidance instructing Board staff on implementing a definition of “contribution” as applied to associations making expenditures to promote or defeat a ballot question. The Statement explains that associations must report
contributions they receive if the money was designated for ballot question expenditure purposes or given in response to an express or implied request for support of the association’s campaign to promote or defeat a ballot question.

Therefore, the names of donors who designated funds toward the ballot question or who were asked to give money to support or oppose a ballot question would be made public. This clarification, the Board is clear to indicate, does not affect the application of the state statute; it merely intends to specify certain definitions of associations and contributions. The definitions, determined by the Board, are expected to directly affect those groups advocating for or against the Minnesota constitutional amendment in the 2012 election.

As Board meeting minutes indicate, the Board received feedback on this issue from both supporters of the amendment, who want to limit disclosure, and from groups that favor full disclosure of contributions. The point of contention is specifically over “expressed advocacy” and whether advertisements that do not explicitly tell voters who to support or what position to take should be subject to disclosure rules. This loophole appears to be how some organizations, including the National Organization for Marriage avoided disclosure in the 2010 gubernatorial election. Their campaign ads, which cost reportedly more than $700,000, suggested that Republican Tom Emmer was the only candidate who would support a constitutional ban on same-sex marriage, but did not expressly take a position on the amendment or tell voters who to vote for.

Common Cause Minnesota sent a letter to the Board asking it to adopt a more expansive definition of “express advocacy.”  Specifically, a definition resembling the Federal Election Commission’s promulgated definition, which requires heightened disclosure, even for groups that avoid directly stating how the electorate should vote. Common Cause asked the Board to adopt a definition “that is objective but prevents opponents of disclosure from creating a formalistic barrier to transparency.”

Advocating against greater disclosure and the expansion of campaign finance laws is Minnesota for Marriage, which includes the Minnesota Catholic Conference, the Minnesota Family Council, and the National Organization for Marriage. Although Minnesota for Marriage agrees to disclose all donations and expenditures consistent with Minnesota law, it also expresses its opposition to the Board’s efforts to “impose illegal regulations on outside parties.” They object to the requirement that a nonprofit corporation that donates to a ballot question campaign must then disclose its own donors, claiming that this requirement is both outside the scope of statutory authority designated to the Board and misleading to the public.

The constitutional question defining marriage on the ballot in Minnesota in 2012 is expected to attract national attention and millions of dollars. There have been lawsuits in several states over disclosure of marriage amendment campaign donors and the National Organization for Marriage will likely act aggressively in Minnesota, as it has in other states.

Stephanie Bitto is a third-year law student at William & Mary.

permalink: http://electls.blogs.wm.edu/2012/01/23/dodging-disclosure

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