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Critics: Deal’s veto distorts high court’s ruling on campaign finance




Critics say Gov. Nathan Deal misinterpreted a landmark U.S. Supreme Court decision this week when he vetoed a bill that would have banned anonymous campaign ads.

Senate Bill 163, passed by Georgia lawmakers with bipartisan support, would have required that political advertisements by independent political committees must state clearly who paid for them. Violators could have been convicted of a misdemeanor.

Deal released this veto message, citing the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, when he deep-sixed the bill on Tuesday:

SB 163 – Campaign Communication Disclosures

Senate Bill 163 attempts to address the issue of campaign communications in campaigns for state or local office that apparently have failed to provide sufficient clarity on who paid for the communication and whether a candidate authorized such communication.  The issue of campaign finance reform has been a consistent theme in Washington, DC and federal court decisions have shown that any type of limitation on the First Amendment right to engage in political speech will receive tough scrutiny. See Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). Such tough scrutiny would be especially likely where a violation of limitations on political speech would constitute a crime – as this legislation provides.  It is my assessment that, while the legislation is well intended, the potential vagueness in what constitutes “general public political advertising or literature” and “any colorable imitation of the name of an existing person or organization” would constitute significant First Amendment concerns.  Furthermore, as has been the case at the federal level, this legislation would likely add significant operational burdens to producing and distributing campaign messages in the variety of mediums that candidates and citizens now use to engage in political speech.  Accordingly, I VETO SB 163.

Common Cause director William Perry contends the Citizens United decision specifically upheld the type of disclosure requirements contained in SB163. The ruling has repeatedly been distorted, he said, to justify a variety of efforts to shine a brighter light on campaign finance:

[T]he Citizens United case has come to stand for so much more than what it actually stands for.  It has become the bizarro bogeyman of free political speech, a scarecrow stuffed with cash, and raised and rattled whenever anyone suggests that openness and honesty is the best public policy. …

Citizens United has been exploited for a beacon of political activism.  But it is not a beacon of light, because it slowly leads Georgians into a dark room, where multimedia political ads overwhelm their senses, but provide no way of knowing where the ad comes from.  In this haunted house of political theatre, ignorance and money rule.

Deal’s chief spokesman, Brian Robinson, wrote in an e-mail that the governor wanted to err on the side of the constitutional right to free speech, particularly in light of the criminal penalty included in SB163:

Citizens United reiterates the U.S. Supreme Court’s long-held belief that political speech holds special protections under the Constitution. When looking at legislation that regulates political speech, the spirit of the U.S. Supreme Court’s rulings tells us to err on the side of the First Amendment. There’s no doubt a public interest in disclosure, but there’s significant constitutional protections for political speech. The Constitution provides strong protections for political speech, especially where the limitation on such speech involves criminal penalties. It was with the Constitution and court rulings in mind that the governor vetoed SB 163.

Citizens United, a non-profit group, sued in 2008 for the right to broadcast a film critical of then-presidential candidate Hillary Clinton. The high court ruled 5-4 that restricting corporations’ spending on political ads would impinge on their right to free speech.

But requiring financial disclosure of such ads’ sponsors would not violate free-speech rights, the court held, according to an October 2010 staff memo to members of the Georgia Campaign Finance Commission:

… the Court clearly did not rescind registration and disclosure requirements placed on PACs or independent committees as an “impermissible ban” or even effective ban on speech.  In fact, the Supreme Court rejected Citizens United’s challenge to the disclaimer and disclosure requirements found in BCRA §§201 and 311.  Citizens United argued that the governmental interest in providing information to the electorate does not justify requiring disclaimers for any commercial advertisements, including the ones at issue here.  In rejecting this argument the Court stated, “The disclaimers required by §311 ‘provid[e] the electorate with information,’ McConnell, supra, at 196, and ‘insure that the voters are fully informed’ about the person or group who is speaking, Buckley, supra, at 76; see also Bellotti, 435 U. S., at 792, n. 32 (“Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected”). At the very least, the disclaimers avoid confusion by making clear that the ads are not funded by a candidate or political party.” supra at 98.

Stacey Kalberman, the commission’s executive secretary, prepared that memo in response to a request by the Center for Individual Freedom to keep its donors’ names secret. The Alexandria, Va.-based center spent $152,000 last year on ads criticizing then-U.S. Rep. Jim Marshall, who later lost his re-election bid to former Georgia legislator Austin Scott.

The commission eventually told the center it did not have to disclose donors paying for ads that do not specifically advocate a vote for or against a candidate. A 2001 rule allowed political groups to keep such donors confidential. Because Georgia lawmakers stripped the commission of its rule-making authority, commission members said they could not change that rule even in light of the Supreme Court’s Citizens United decision.

Legislators have resisted advocacy groups’ push to restore the commission’s rule-making power.





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