This afternoon the Kansas Senate debated for about 90 minutes on an amendment that would require more disclosure for “issue ads” or communications in favor of candidates by third parties.
Senator Terrie Huntington, a Republican from Fairway, introduced the amendment to Senate Substitute for HB 2079. Its language, apparently identical to Senate Bill 418, states: “Any person who spends or contracts to spend an amount of $500 or more per calendar year for any electioneering communication” must file reports that disclose the identity of the donor and the amount of the contribution.
At one point in the debate, Senator Terry Bruce, a Hutchinson Republican, asked Huntington why it is the government’s business who makes a contribution? Huntington replied the she didn’t know why the government has campaign finance laws, except that she has to file reports of her contributors.
Bruce also objected to what he called “loose language” in the bill. Several times he asked about the use of the word “specifically,” saying that the bill was vague in who would be required to disclose contributions. He suggested that churches might have to disclose their donors if this amendment becomes law.
Senator Anthony Hensley, a Topeka Democrat who is the long-time minority leader of the Senate, said that this amendment applies only to those who contribute over $500 for the purpose of electioneering communication. He added that this type of communication does not include communications made by membership organizations solely to their members. That would not be covered by this amendment, he said.
Senator Susan Wagle, a Wichita Republican, made a case for anonymous free speech based on the Constitution. People should be allowed to state an opinion, she said. She referred to a series of “Snoop dog” ads used in recent elections that were, she said, traced back to abortion doctor Dr. George Tiller of Wichita. Noting that Tiller was murdered last year, she said “somebody got upset, and he was murdered. And that’s why we protect free speech, and that’s why we allow for anonymous free speech.”
Senator Tim Huelskamp, a Republican from Fowler in southwest Kansas, raised the issue of how this amendment would affect unions and their communications. Huntington said that unions are not formed for the express purpose of campaign electioneering.
Hensley said that unions typically form political action committees, which must disclose their contributors. If they don’t do that, they are treated the same as corporations.
Huelskamp raised the question what if an organization sends out a communication to their members, but someone else — not a member — inadvertently receives the communication? This is important, as the language of the amendment says that communication solely to members is not covered. Huntington did not seem to have a satisfactory answer to this.
What about editorials, Huelskamp asked? Huntington said that editorials printed in newspapers not controlled by the candidate are not covered by the proposed amendment. Huntington said that newspaper editorials are not written for the purposes of electioneering, which Huelskamp disputed, noting that editorialists “write all the time trying to influence elections.” He recognized the concern that some have for the wealthy influencing elections, and that some own newspapers and other outlets. Why do they get to editorialize and send out their opinions?
Huntington noted that newspapers are covered under the freedom of the press guaranteed in the Constitution, and that we all know who owns the newspaper. Huelskamp said that ownership is not necessarily known in all cases. He asked about the distinction between an individual buying an ad in the newspaper versus an editorial writer saying the same thing. Would the ad buyer be subject to disclosure, but not the editorial writer? What is the reason for the distinction, he asked?
Huntington replied that editorials are not included in the definition of electioneering communications in this amendment. Huelskamp pressed for the reason why this is so. Huntington replied that these do not expressly advocate for or against a particular candidate, so they were not included in the definition of electioneering communication.
Huelskamp noted that express advocacy is the whole purpose of this amendment, so why are these exemptions in the amendment? Huntington was not able to give a specific answer.
Huelskamp said that this amendment would create a situation where a newspaper editorial writer could write something, and then a private citizen could pay for an ad with the exact same language, and the citizen — not the editorial writer — would be subject to election reporting requirements. Why, he asked, should those who own a newspaper have more free speech than others?
During the debate there seemed to be confusion on spending $500 or more on a communications piece versus contributing $500 or more to an organization.
Huelskamp mentioned a case in 1958 Alabama, where that state tried to determine who were members of the NAACP. The Supreme Court ruled that there is a right to anonymous groups to get together and influence the political process, he said. Legislation like the proposed amendment, he told the Senate, would have prevented the NAACP from reporting on the action of the Alabama legislature.
In closing, Huelskamp said that even ads that let citizens know what elected officials are doing are affected by laws like these. The purpose of this amendment, he said, is to limit and chill speech of those who might disagree.
Hensley said this amendment is about the peoples’ right to know. He mentioned the organization Americans for Prosperity, saying he thinks it doesn’t want people to have the right to know about their contributions and expenditures. He said that AFP is, in fact, electioneering.
Hensley contended again that all the amendment says is that if you contribute more than $500, you’re going to have to disclose. He said we know who writes newspaper editorials and letters to the editor.
Hensley mentioned an award he received from Kansas Sunshine Coalition for Open Government, and that Huelskamp was also honored as a “friend of the public’s right to know. That’s what this is all about.”
Joining the debate again, Bruce addressed the issue of whose information will be made public. He said that this amendment would require disclosure of anyone who has contributed $500 or more to an organization.
Senator Jeff Colyer delivered a short lesson on American history, telling how founding fathers such as Benjamin Franklin, James Madison, Alexander Hamilton, John Jay, and Thomas Jefferson wrote anonymously — electioneering, Colyer contended.
In a roll call vote, the amendment failed with 18 votes in favor, and 21 against.
Analysis
Hensley’s accusation of Americans for Prosperity reveals the true target of this amendment. It, along with a few other organizations, are being singled out in this proposed law. These organizations are largely conservative, although those on the political left have tried to hide large political contributions, as a Kansas Meadowlark investigation revealed.
I believe that Hensley confuses government action with private action. Open records, which is an issue Huelskamp has been closely involved with, is concerned with citizens’ right to know what government is doing. This amendment addresses actions that private individuals may take. There’s a huge distinction between the two, and that’s one of the largest issues in this amendment.
In making his remarks about knowing who writes newspaper editorials and letters to the editor, Hensley may have forgotten about unsigned editorials and features like the anonymous and popular Opinion Line in the Wichita Eagle. Most newspapers also allow comments to be left to articles on their online editions, and these are almost always an anonymous form of communication and commonly used for blatant electioneering.
A problem with this amendment is that individuals may make contributions to organizations for general use, not earmarking the dollars for any specific use such as a political mailing. How would organizations decide whose contributions to disclose?
In the end, the best solution is a government so small, so limited and powerless, that it doesn’t much matter who is in charge. Then campaign finance won’t be very important.
This vote is part of the Kansas Economic Freedom Index.
Kansas Senate vote ratings for Jim Barnett and Tim Huelskamp