September 8, 2011 – Today, during its regularly scheduled meeting, the Board voted to release proposed rules to implement the New York City Charter mandate for disclosure of independent expenditures. The proposed rules and a plain-language guide to the rules can be found here (pdf).
After the rules are published in the City Record, the Board will announce a public hearing on the proposed rules, and a 30-day period for public comment will commence. The Board held a previous public hearing on the issue in March of this year.
The Board issued a statement on the proposed rules, which follows.
Statement of the Campaign Finance Board
Disclosure of money raised and spent in elections is fundamental and essential to the democratic process. Details about a candidate’s financial supporters can provide important signals to voters about the way that candidate will act in public office, and disclosure of campaign spending helps members of the public to evaluate the messages they receive during the election season.
While disclosure of fundraising by aspiring public officials is important, a complete view of money in the political system requires disclosure of independent expenditures.
Under the Campaign Finance Act, candidates for City office have always been required to disclose money raised and spent. Independent expenditures have long been a part of City elections, but a gap in disclosure requirements has kept the details of independent spending hidden from public view.
To close this gap, the 2010 Charter Revision Commission proposed amending the New York City Charter to require disclosure of independent expenditures in City elections.
The question placed on the ballot asked New Yorkers if they wished to adopt a proposal to "require public disclosure of expenditures made by entities and individuals independent from candidates to influence the outcome of a city election or referendum." The voters responded overwhelmingly, approving the revision with 84 percent of the vote.
Charter §1052(a)(15) directs the Board to "promulgate rules concerning the form and manner in which independent expenditures are to be reported and disclosed." Today, the Board issues proposed rules to the public. In drafting rules to implement the disclosure mandate, the Board relied on a few key principles.
Public disclosure of spending on elections provides voters with important information about candidates and elections.
From Buckley v. Valeo through Citizens United v. FEC, the Supreme Court has long recognized that the public’s interest in disclosure is sufficiently compelling to require certain actors to provide details about their election-related spending. The Supreme Court’s 1976 majority decision in Buckley, which still provides the basic constitutional framework for campaign finance regulation, referred to three essential public purposes for disclosure:
- Disclosure provides voters with information about “the sources of a candidate’s financial support,” which may “alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.”
- Disclosure requirements “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity… A public armed with information about a candidate’s most generous supporters is better able to detect any post-election special favors that may be given in return.”
- Recordkeeping and reporting requirements “are an essential means of gathering the data necessary to detect violations” of campaign finance laws.
In short, disclosure of election-related spending helps our democracy function properly. Disclosure helps potential voters evaluate candidates for office, empowers the public to act as watchdogs, and ensures that all actors in the electoral system are playing by the rules.
The Charter mandate requires a similarly broad view of disclosure for independent expenditures.
The Commission’s Final Report suggests a policy rationale for public disclosure of independent expenditures similar to that of Buckley.
- The Commission suggested that disclosure of independent expenditures “would provide critical information and context for members of the public and help them to evaluate advertising messages aimed at influencing their votes.”
- Relying on the language of the Citizens United decision, the Commission also suggested that disclosure can provide citizens with the information to hold elected officials “accountable for their positions and supporters.”
- The Report further suggested that disclosure of independent expenditures would help ensure that candidates are all playing by the rules, and “enhance CFB’s ability to enforce expenditure and contribution limits under current law by providing CFB with real-time data.”
For disclosure to be most useful to the public, it should be as inclusive as possible. That is why the City Charter provides no basis for exemptions from disclosure requirements based on the identity of the intended audience for a particular communication. The nature of some organizations requires a thoughtful approach to disclosure, however. Many groups are formed for the specific purpose of raising and spending money to influence elections. Other organizations should be able to educate their members to engage meaningfully and knowledgeably in the political process without fear of undue intrusion.
There have been compelling arguments raised in our public hearing and in other forums about the special nature of communications between an ongoing organization and its own members. That is why the proposed rules focus specifically on disclosure of spending on campaign materials, while providing explicit exemptions for membership-building communications like newsletters, phone calls, and communications relating to internal deliberations about candidates.
The Charter mandate requires disclosure of spending, not of speech. Under this framework, most electronic communications are not subject to the disclosure rules.
The mandate for disclosure will provide New York City voters for the very first time with a complete view of all funds raised and spent to influence the outcome of City elections. Members of the public will be able to view financial information online for City candidates and the independent groups who support or oppose them in a single location.
The Board will schedule a public hearing to discuss the proposed rules. We encourage interested members of the public to review the proposal carefully, and we look forward to a robust discussion on this issue.
Buckley, 424 U.S. at 67.
Id, at 68.
Final Report of the 2010 New York City Charter Revision Commission, 13.