Declarations of independent spenders

On 2012’s most unusual election day in New York City, one of the biggest changes is happening behind the scenes: For the first time, the city’s Campaign Finance Board is requiring disclosure of independent spending in local elections.

In the Bronx, the special City Council election to fill the seat vacated by convicted politician Larry Seabrook offers the first test of the new rules, which follow the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission permitting unlimited election spending as long as it is not coordinated with a campaign.

So far, just one spender has taken the plunge. The union 1199SEIU United Healthcare Workers East reports spending about $4,500 on mailers to be sent to members living in the district, in support of candidate Andy King, who is running under the banner of the People First party. He faces five rivals, all of them independents, in the closely contested election.

The union’s support for King may not be a surprise; after all, he worked for the group as an organizer before he declared his candidacy.

But the disclosures are sure to be more revealing as the hotly fought 2013 campaigns for Mayor, City Comptroller, Public Advocate and City Council get underway. While federal elections attract millions of dollars from outside groups, it can take significantly less money to influence city elections.

“You’re not raising millions of dollars for a City Council race,” said political strategist L. Joy Williams, who advises candidates in the city. “If an outside group is doing mail, or direct contact with voters, it can make a difference.  That’s something additional that the campaign would not have to do.”

New York City’s public financing system, which matches the first $175 of a donation from an individual city resident 6-to-1, may make city races a tempting target for those hoping to influence New York’s politics. Candidates who choose to opt into the public financing system must adhere to strict spending limits — but independent expenditures are not subject to any caps.

“It’s not a situation where everybody can go, ‘The sky is the limit.’ The only people that have that option are the independent spenders,” said Laurence Laufer, an attorney specializing in election law at Genova, Burns, Giantomasi & Webster. Laufer noted that outside groups could be particularly effective by spending their money on negative campaign ads right before Election Day. “They can swoop in rather late with a significant mail buy and the candidate doesn’t have the ability to change direction or counter that in an effective way,” he said.

If the city does see an influx of independent expenditures next year, the public will know quite a few details about who is spending that money and what it is being spent on. For example, the Bronx council race filing from 1199SIEU includes a link to the actual piece of mail sent to the union’s members. That’s because under the city’s new rules, those making independent expenditures must include in their filings a copy of the communications being sponsored, including video and audio files of broadcast commercials and automated telephone calls.

No such requirements exist for spenders on federal or state elections. The Federal Election Commission’s online database only includes the name of commercial, not an actual copy of the ad itself. Meanwhile, New York State’s definition of independent expenditures only extends to communications that are considered “express advocacy,” and use words like “vote,” “oppose,” “support,” “elect,” “defeat,” or “reject.” This means that communications that do not include these so-called ‘magic words’ do not have to be reported.

“The state has a very narrow rule that anyone seeking to avoid disclosure can easily evade,” said Adam Skaggs Senior Counsel for the Democracy Program at the Brennan Center for Justice. Already, a mysterious Virginia group called Common Sense blitzed several districts around the state — including the Queens district where Councilmember Eric Ulrich seeks to unseat State Sen. Joseph Addabbo —  with mailers slamming incumbent Democrats.

In contrast to the state, the city’s rules cover not only express advocacy but also include “electioneering communications,” which are broadcasts, paid advertising, and mass mailings distributed shortly before elections that include the name of a candidate or ballot proposal.

Also, if a group spends $5,000 on independent expenditures, in increments of $100 or more, which refer to a single candidate in the 12 months before an election, than the group must disclosure contributions received from organizations since January 1 of the election year, and disclose contributions of $1000 or more received in the 12 months prior to the election.

“Compared to the state, the city is light years ahead,” said Skaggs, but added that the rules still needed to be tested. “It’s clear it’s a lot better than the state. But whether or not it really captures everything that voters would want to know about is an open question.”

Also, a few kinks may still have to be worked out of the new rules. Last month, Kevin Finnegan, director of politics and legislation for 1199, voiced concerns that rules prohibiting coordination between spenders and campaigns made endorsements difficult. “We read your interpretation of the rules that you promulgated that we cannot talk to candidates,” said Finnegan to a member of the Campaign Finance Board during the panel discussion. He asserted that speaking with candidates was vital to the endorsement process.

“We have to ask questions of candidates about how many doors they’re going to knock on and how much money they’re going to raise. All that kind of stuff,” he said.

Matt Sollars, a spokesman for the Campaign Finance Board, told The New York World in an email that “An endorsement process, in and of itself, does not lead to the conclusion that the group’s expenditures are being coordinated with the endorsed candidate.”

While only time will tell exactly how the city’s disclosure rules will affect spending on next year’s election, the new scrutiny is destined to reshape strategy. Said Williams, “Anytime people have the spotlight shined on what they’re doing, they make decisions about how they will proceed.”

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