Disclaimers and Disclosure

The “other holding” in Citizens United, the one in which eight justices concurred, upheld federal disclaimer and public disclosure requirements as applied to the film Hillary and televised advertisements for the film.  Looking perhaps to the future, the majority reflected that “[a] campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.” Likewise, looking to the future, this week at the 2010 annual meeting of the New York State Bar Association, the Committee on Attorneys in Public Service sponsored panel discussions on The State Legislature and the State Constitution: The Path Forward.  My presentation addressed recent proposals to reform campaign financing, and included consideration of the Citizens United decision. Currently, New York imposes no disclaimer or public disclosure requirements on corporations or unions making independent expenditures in State and local elections.  That would change under the Ethics Bill, which passed the Assembly and Senate last week (A.9544/S.6457). Among other reforms, the bill would require disclaimers to indicate when a political communication was not authorized by a candidate and to identify who paid for it.  The makers of independent expenditures would be required to disclose to the State Board of Elections: the person making the independent expenditure; persons giving money to fund the independent expenditure; the amount and date of each independent expenditure; and the election and candidate to whom the independent expenditure pertains.  These provisions are analogous to the federal requirements upheld in Citizens United. As of this writing, the future of the Ethics Bill is uncertain.  Governor Paterson seeks a broader set of ethics reforms and has threatened a veto. On February 2, 2010, the Governor vetoed the bill.  The Legislature failed to override the veto.