Can you tell the difference between these mailers? Though they look similar, target the same legislative race, and were paid for by two different arms of the Coalition of Minnesota Businesses, only one required fundraising and spending disclosure with the state's campaign finance board.
The Coalition of Minnesota Businesses PAC, which paid for the flier on the right, had to report its finances to the campaign finance board, including how much it spent on the mailer, because it includes the words "vote for" — two of the "magic words of express advocacy." The Coalition of Minnesota Businesses, a non-profit, did not have to report how much it spent on the flier on the left because it doesn't include those magic words.
ST. PAUL, Minn. — In the arcane world of campaign finance law, the words "vote for" and "vote against" carry a lot of weight.
They're among a handful of phrases considered the "magic words of express advocacy" that distinguish the ads, mailers and other forms of election communication paid for by political groups that are overseen by the state's Campaign Finance and Public Disclosure Board from those that are not.
After an election season dominated by spending by outside political organizations, it's something the board may be looking to change, said board executive director Gary Goldsmith.
"I think the board has noticed, like many candidates have, that a lot of money flowed into the system from outside sources, some of which report to us and some of which don't," said Goldsmith. "To some extent, it's now outside interests that are becoming successful in their efforts to define the candidate."
The board's six members meet Wednesday to discuss the policy recommendations they want to make to the Legislature, which would have ultimate say over whether the state's campaign finance laws are changed.
Goldsmith says that the board wants information about where political money comes from and how it is spent to be more transparent.
TO MOST, LITTLE DIFFERENCE IN ADS
To the average voter, it's difficult to distinguish between express advocacy ads and the issue advocacy ads the board may want more information about.
The former ads tells voters to support or oppose a specific candidate and are paid for by a political fund, which has to report how much it has spent on the ads and where the money comes from.
The latter ads may come in the form of a voter guide or a flier that criticizes or praises a candidate for their voting records, but don't go so far as to use the words "vote for" or "vote against." As a result, groups don't have to say how much they've spent on such ads or where there money has come from.
Groups don't have to give the board information about so-called electioneering communications either, which typically tell voters to thank their lawmakers for supporting specific policies.
During this past election season, several groups influencing Minnesota legislative races took advantage of these nuances in the state's campaign finance rules.
For instance, a report filed with the campaign finance board by the Coalition of Minnesota Businesses PAC, a fund that collects money from businesses and interest groups that support pro-business candidates, shows the political committee spent at least $72,000 on mailers in 14 legislative races.
The group also used its non-profit arm to send out a separate slate of mailers to some of the same districts; those fliers asked voters to call and thank their Coalition-backed lawmaker for balancing the budget, for instance.
The non-profit arm of the Coalition can keep those mail expenses private, and it doesn't have to say where it gets its money.
Even though those mailers arrived around election time, Charlie Weaver, who leads the Minnesota Business Partnership and oversees the Coalition of Minnesota Businesses, said the fliers were part of a broader campaign about the state's budget.
"It's not political. It's issue advocacy," Weaver told MPR News in October. "It's around issues we care about. We're not advocating for the election or defeat of any candidate."
The Coalition of Minnesota Businesses declined to comment on this story.
Goldsmith said the state lags behind federal rules regarding these sorts of communications that allow for more information about electioneering communication and for broader interpretation of those "magic words."
"It's a reasonable interpretation of the communication rather than looking for specific words," he said.
But when it comes to interpretation, enforcing these rules can be troublesome, said John Knapp, an attorney with Winthrop and Weinstine. He said several states have tried to broaden the "magic words" test, but they haven't been very successful.
"What they're trying to determine is, 'What was the intent of the speaker,'" Knapp said. "And when you get into trying to interpret intent in the first amendment context, it gets to be a pretty tricky exercise."
The state may consider other changes as well.
For instance, the board may decide it wants more information about who is giving to nonprofit corporations spending independently on candidates or on ballot initiatives, Goldsmith said. Right now, they don't have to tell the board anything about an individual donor unless they use $1,000 or more from that donor for political purposes.
For his part, Gov. Mark Dayton said he'd like to increase the amount of money state candidates can take from donors because it would limit spending from outside groups.
"As with any limits that don't keep pace with reality, you push the contributions further away, you get the parties involved, you get all these outside interest groups involved," Dayton said. "So the money goes through them and you have less accountability for the campaigns."
DFL Rep. Steve Simon, who will chair the House Government Operations and Elections committee that oversees state campaign finance laws and the board's funding next session, thinks increasing the amount of money legislative candidates can take from donors is a good idea because it would limit the influence of outside money, and give candidates more time to meet with voters and legislate.
Simon believes voters and candidates want to know more about where outside groups are getting their money and how they're spending it.
"Whether you're a Democrat or a Republican or a liberal or a conservative, you've probably over the last election cycle or two, felt aggrieved or attacked or even offended by some of the huge sums of outside money and the frustration in tracing where that money came from in some instances," he said.
The board also says it needs more money from the state to do its job effectively.
For years, regardless of party, the Legislature has provided the board less cash than the governor has recommended, Goldsmith said. Most recently, the board staff has worked with an annual budget of $689,000 and 7.6 staff members.
It's asking the Legislature for $1 million annually, enough to support a staff of nine and to do more campaign fund treasurer training, to update the board's website, and to make all finance reports electronic.
Simon says he wants to give the board more.
"I do hope, though it's a time of scarcity for budgets, that we can find some room to make sure they can do what they know they can do," he said.
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