Nov 25th, 2008
Posted by Seth DiStefano, ACLU of West Virginia at 2:12pm	Free Speech, Voting Rights

Buying Elections Is Not Free Speech

Maybe it's different where you're from, but in West Virginia, the just-past general election cycle and the one before it were noted for concerted efforts by out-of-state corporate behemoths to purchase seats on the State Supreme Court and in the Attorney General's office. Call me bitter, but when your state's judicial system becomes the basis for a John Grisham novel, the time has come to take action.

During the 2004 elections, Don Blankenship, the CEO of giant coal producer Massey Energy, decided to get involved in a State Supreme Court race. This coal baron had a big case coming before the court and knew he needed a more favorable vote count. So he started his own "issue advocacy organization" called "And For the Sake of the Kids." Due to his group's tax classification, he did not have to disclose the source of its funding: close to $3 million of his own money in a blatant effort to buy a seat on the West Virginia State Supreme Court. The effort paid off because, by the time it was revealed that Blankenship was the person funding the highly negative television ads, radio spots, and direct mailings, the damage was done and his candidate had won. When that big case came around, turned out the Massey energy had made a smart investment: The justice he helped elect provided the crucial vote in a 3-2 decision. (Coincidently, that justice's refusal to recuse himself from that case has led to the United States Supreme Court getting involved. The high court has agreed to hear the failure to recuse case next spring.)

Following this travesty, the West Virginia Legislature passed laws requiring non-profit issue advocacy organizations (commonly known as 527's) who involve themselves in election activities to report the source of individual contributions $1,000 and up after spending $5,000. The legislature saw fit to include requirements for organizations that run ads 30 days before a primary and 60 days before a general on behalf of a clearly identified candidate. (This means if you run election ads that assail one candidate while not explicitly advocating on behalf of another, you still have to make information to voters available as to where the funding is coming from.) This is not unreasonable and should be viewed as compatible with First Amendment protections. No one is saying you cannot say what you want, but voters need these disclosures so they can make more informed decisions as to the legitimacy of organizations out to influence elections.

Big corporations seeking to buy elections in our state saw the writing on the wall and acted accordingly. In 2007, the self-styled Center for Individual Freedom, with the assistance of Citizens Against Lawsuit Abuse, got a federal judge to stifle the Legislature's 2005 law, citing it was vague enough to conflict with First Amendment protections. The legislature responded accordingly during a heated special session of the legislature with a modified bill that the Governor signed. The federal judge lifted his previous injunction and let the new disclosure law stand.

But that didn't dissuade the likes of big corporations from crying "free speech" and fighting tooth-and-nail to hide the funding of their electioneering efforts from the voting public. After the original judge lifted his injunction, West Virginians for Life, in concert with the conspicuously well-funded Center for Individual Freedom picked another federal judge and managed to get an injunction ordered the day before early voting started. This resulted in the U.S. and West Virginia Chambers of Commerce dumping close to $700,000 in the final days leading up to November 4th in an attempt to purchase the Attorney General's race. Because the chambers label themselves "issue advocacy organizations," they got away with keeping their financers secret. In reality, they are out to influence elections and should be held to the same standards as everyone else.

If Big Tobacco happens to be the major contributor of say, the "Basket of Puppies Foundation," and that "issue advocacy organization" happens to dump hundreds of thousands of dollars or even more toward influencing a particular election, then shouldn't the citizens affected by their electioneering be entitled to know where the money is coming from?

We demand transparency from government, but look the other way when organizations seek to influence government through careful navigation of electioneering and tax code loopholes. I hope the ACLU will revisit this issue and seriously consider a stronger statement in support of campaign disclosure laws. Buying an election is not free speech, and the calculated character assassination of candidates for public office should not qualify as "issue advocacy." Democracy has the right to protect itself from those who feel individual rights are an impediment to supreme government power.

Author’s Note: I realize that the phrase "Basket of Puppies" could be common in this and other contexts. I do not claim sole ownership of it. —S.D.

Permalink |	Free Speech, Voting Rights

1. Joseph S. Says:
   Nov 25th, 2008 at 5:52pm

   Kudos on the good work & best of luck. As a fellow West Virginian, I'm watching this closely.

2. Brett Bellmore Says:
   Nov 26th, 2008 at 3:21pm

   "Buying elections" is a metaphor, and a very deceptive metaphor, crafted by people who want to blow a hole in the First amendment you could drive a truck through. I'm more than a little disturbed to see the ACLU humoring the idea that purchasing airtime and printed matter constitutes "buying an election". Are you planning to become as bad on the First amendment as you are on the Second?

3. seth distefano Says:
   Nov 26th, 2008 at 5:19pm

   Unfortunately, "buying elections" is not a metaphor in West Virginia. It happens, and it is getting old.

   Further, I am not advocating for limiting what is said or printed. Say whatever you want in your electioneering communications. However, the public has a legitimate interest in knowing the significant financial support of these organizations.

   It is in the public interest for voters to, at a minimum, have the opportunity to make informed decisions as to the legitimacy of organizations who spend millions of dollars in blatant efforts to influence the outcomes of elections.

4. T. Paine Says:
   Nov 28th, 2008 at 8:19pm

   I couldn't agree more with Brett Bellmore (comment #2). I'm as concerned about the ACLU being on the wrong side of the 1st Amendment as I am when McCain puts the 1st Amendment in quotation marks.

   There are legitimate reasons for anonymous political speech, and such speech should receive vigorous protection by the 1st Amendment.

5. Brett Bellmore Says:
   Nov 29th, 2008 at 1:05pm

   Um, "blatant efforts to influence the outcomes of elections" are a CIVIL RIGHT. In other contexts the ACLU generally frowns on the demand that exercise of a civil right involve your identity being publicly outed.

   And, no, "buying elections" damned well IS a metaphor, unless you're paying elections officials to rig the count, or something comparable.

6. Brett Bellmore Says:
   Dec 1st, 2008 at 8:31am

   "Unfortunately, “buying elections” is not a metaphor in West Virginia."

   Yes, it is. They're buying speech and printed matter, not malfeasance on the part of elections officials. They're buying *the opportunity to persuade*.

   Treating this sort of thing as even vaguely analogous to corruption is a frightening departure from respect for freedom of speech and the press, and especially coming from a self-proclaimed 'civil liberties' organization, even one as well known for it's hypocrisy as the ACLU.

7. seth distefano Says:
   Dec 3rd, 2008 at 9:15pm

   Folks,

   If and whenever you decide to give to a candidate's election committee (i.e. Friends of whoever) you are, in most states subject to disclosure laws if your contribution exceeds certain amounts.

   The situation in West Virginia comes down to some simple realities: Huge corporations give massive amounts of money in what is the same goal of a candiate's election committee, namely electing that candidate and defeating another. Therefore, sham 527's who carefully navigate taxcode loopholes but nonetheless are out to influence elections should be held to the same standard as those who give large amounts to a specific candidate's committee.

   Please remember, in WV, we do not require specification of any donor who gives less than less than $1000. Additionally, 527's don't have to report anything if they spend less than $5000 in an election cycle. No one is trying to out the small or medium level donors. But the public has an intrest if a huge corporation is dumping hundreds of thousands of dollars destroying the character of a candidate in a blatant attempt to elect another.

   Why are you scared of allowing the public to know where the significant support of the groups come from?

   Don't pretend like this is the 1700's. I know full well the risks that Ben Franklin took when he published 'Poor Richard's Almanac.' Yes, at that time he could have been hanged for his political advocacy. These things are important to remember and practice in the appropriate circumstances today.

   However, do not even try to equivocate what our Founding Fathers went through with what is going on today in West Virginia and have the audacity to claim Free Speech. If you are out to influence elections, then the sources of your major contributions should be held to the same scrutiny as everyone else's.

8. Olivia H. Says:
   Dec 9th, 2008 at 4:01pm

   They’re buying speech and printed matter,but They’re buying the opportunity to persuade is it not the same?
   To me in orders to have speech you must have printed matter and then you must get people to vote for that speech so your persuading them,and that is why i question is it not the same?

9. Wanda, Says:
   Dec 9th, 2008 at 6:02pm

   AS A STUDENT FROM LiNCOLN WEST HiGHSCHOOL i FOUND THiS BLOG VERY iNTERESTiNG.
   iT MADE ALOT OF iNTERESTiNG POiNTS AND TAUGHT ME SOME NEW THiNGS!

10. Marc D Says:
    Dec 9th, 2008 at 8:54pm

    I thinks this is very wrong no matter what.

11. Elba Perez Says:
    Dec 10th, 2008 at 4:06pm

    IM AM IN 10TH GRADE STUDENT.I GO TOO LINCOLN WEST HIGH SCHOOL.MY OPINION ABOUT WHAT I CHOOSE IS THE BUYING ELECTION IS NOT FREE SPEECH.WHAT I THINK IS VOTERS HAS THE RIGHT FOR TAX CLASSIFICATION AND SOURCES.THIS IS MY OPINION ABOUT WHAT I CHOOSE.

12. LAQUISHA G. Says:
    Dec 11th, 2008 at 5:57pm

    IM A STUDENT FROM LINCOLN WEST AND I THINK THAT THIS BLOG HAD A LOT OF INTERESTING FACTS AND I THOUGHT IT WAS A GOOD BLOG.

13. centered Says:
    Dec 21st, 2008 at 8:04am

    So I guess its ok to buy an election when its a friend of the ACLU? Like say, this past presidential election. Hypocrites.

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