Governor’s Counsel Issues Opinion to Enforcement Entities on ‘Independence’; Governor to Advance Landmark Legislation to Strictly Prohibit Coordination in New York State Election Law for the First Time
Governor Andrew M. Cuomo today announced he is taking first-in-the-nation action to curb the power of independent expenditure campaigns unleashed by the 2010 Supreme Court case Citizens United vs. Federal Election Commission. The Governor’s Counsel, Alphonso David, issued an opinion to enforcement entities offering guidance on existing state law and whether coordination exists between independent expenditure campaigns and the candidates they support. The opinion clarifies permissible conduct under state law and works to preserve the integrity of the electoral process in New York.
The Governor is also advancing legislation which would limit the “quid pro quo” danger posed by colossal corporate donations and ensure that independent expenditure groups remain autonomous from the entities they support. The legislation would also strengthen disclosure requirements and mandate that groups report the identity of anyone exerting control over them, as well as any former staffers or immediate family members of a candidate. The Governor made the announcement in a speech at Fordham University School of Law.
“Today, all New Yorkers can vote and speak freely — but the power to influence and the power to be heard in elections was tilted beyond all recognition when the Supreme Court upheld Citizens United. This decision ignited the equivalent of a campaign nuclear arms race and created a shadow industry in New York — maligning the integrity of the electoral process and drowning out the voice of the people. Citizens United must be reversed.” Governor Cuomo said. “As Governor of New York, I am taking action to curb the powers of independent entities and ensure these committees cannot circumvent the law and cheat the system. We are also strengthening disclosure requirements so we know exactly where and from whom this dark money flows. Our message is clear: In New York, democracy is not for sale. I strongly urge the State Legislature to join me in restoring the people’s trust in government and pass this legislation this session.”
Over the past five years, the ability of average citizens to influence their government has been eroded. Today, the power of the electorate has been eclipsed by wealthy donors, with elections being bought and sold. This is only exacerbated by a middle class that has become economically stagnate while income inequality continues to grow. While there are many factors at play, Citizens United has done more damage to civic engagement than any other Supreme Court decision in modern political history.
Counsel’s Opinion Regarding Application of Article 14 of Election Law
The lack of clarity in Article 14 of the Election Law, coupled with uneven enforcement, has created uncertainty regarding the boundaries of permissible conduct and has led to concerns of flagrant abuses of the law. To address this concern and consistent with the Governor’s constitutional obligation to ensure that the laws of the State of New York are faithfully executed, the Counsel’s opinion provides guidance on the interpretation of independence and coordination under the New York State Election Law.
The opinion states that under current law, an independent expenditure cannot include communications where the candidate, the candidate’s political committee, or a party, constituted or political committee “authorize, request, suggest, foster, or cooperate in such communication.” The terms “authorize, request, suggest, foster, or cooperate” are not defined in the statute.
However, there are a commonality of factors that fit into these basic definitions, which highlight coordination and a lack of independence. The Counsel’s Opinion states that each of these factors should be taken into account by regulators tasked with enforcing the independent expenditures provisions of the election law:
- Whether a candidate formed an entity that later makes expenditures benefitting the candidate;
- Whether a candidate raised funds on behalf of an entity that later makes expenditures benefitting the candidate;
- Whether an entity making expenditures benefitting a candidate is operated by former staffers or immediate family members of the candidate;
- Whether a communication reproduces material prepared by a candidate’s campaign, such as b-roll footage;
- Whether an entity making expenditures benefitting a candidate engages in strategic discussions with the candidate’s campaign regarding the campaign’s strategy;
- Whether an entity making expenditures benefitting a candidate shares vendors or space with the candidate’s campaign; and Whether a donor to a candidate also provides a material portion of total contributions to an entity making expenditures benefitting the candidate.
The opinion deems these factors necessary to ensure an appropriate separation between candidates and independent entities, and to achieve the basic intent of the existing legislation. Accordingly, the opinion asserts a change in existing law is necessary to appropriately codify a demarcation between candidates and independent spenders and to support the public’s interest in an open and accountable electoral process. The opinion also asserts the law should be further strengthened to clearly outline violations of the independence requirements with appropriate safe harbors if necessary.
In an effort to preserve the integrity of elections and restore the people’s faith in government, Governor Cuomo is advancing first-in-the-nation legislation to limit the potential of nefarious “quid pro quo” arrangements between donors, elected officials and independent expenditure campaigns. The legislation institutes the strongest anti-coordination law in the nation and explicitly prohibits coordination in New York State election law for the first time.
Under the Governor’s proposal, candidates would be prevented from forming committees, PACs would not be allowed to be run by former staffers or family members and candidates would not be allowed to discuss strategy with committees within 6 months of the election. The law would also require independent spenders to report the identity of anyone exerting control over the group, as well as any former staffers and immediate family members of candidates.
Specifically, the Governor’s legislation would:
- Add “coordination” to the list of non-independent expenditures and define the following scenarios as prohibited coordination:
- The spending entity was formed by the candidate or the candidate’s agents;
- The candidate or his agents fundraised for the spending entity;
- The spending entity was formed by the candidate’s former staffers;
- The spending entity is operated by a member of the candidate’s immediate family;
- The communication reproduces non-public campaign-related material;
- The candidate or the candidate’s agents requested or suggested the communication;
- The candidate or the candidate’s agents were materially involved in the communication;
- The candidate or the candidate’s agents engaged in substantial discussions with the spender regarding the communication;
- The spender engaged in strategic discussions with the candidate or the candidate’s agents in the six-month period prior to the relevant election; and
- A contributor acquires a dominant interest in the spending entity and the candidate appeared at an event for the spender, the candidate or the candidate’s agents shared a vendor with the spender, or the communication was derived from non-public information about the candidate’s campaign.
- Require additional disclosures for individuals and entities making independent expenditures.
- Establish that any criminal penalties resulting from election law shall require a knowing and willful violation in accordance with existing section 14-126 of the election law.
Citizens United vs. Federal Elections Commission
In 2008, the conservative non-profit Citizens United produced a film called Hillary: The Movie, which they wanted to run as a paid television advertisement. Under the Bipartisan Campaign Reform Act of 2002, showing the film during television broadcasts was a violation of federal law. In 2008, the United States District Court for the District of Columbia upheld BCRA and ruled that Citizens United was prohibited from running paid television ahead of the Democratic Primary. In 2010, the Supreme Court reversed course and issued a sweeping decision that prevented government from restricting the creation of unlimited independent expenditure committees.
As a result, spending by outside groups — those who operate independently of political candidates — has more than doubled since 2010. Five years ago, approximately 80 Super PACs were registered with the FEC, with independent expenditures totaling more than $90 million. In 2012, more than 800 Super PACs were registered with the FEC, with groups spending approximately $800 million that cycle.
In the three election cycles since 2010, Super PACs have spent more than a billion dollars. Nearly 60 percent of those donations — more than $600 million — were made by just 195 people and their spouses. In the 2016 presidential election, close to half the money raised by super PACs through the end of February came from only 50 mega-donors and their relatives.
In 2014, the first cycle since New York law increased reporting requirements for independent expenditure campaigns, $60 million was spent on state senate races. Of that, independent expenditure committee spending accounted for about $15 million. By comparison, only about $2 million was raised by individual contributions. Spending in the most expensive race, for the 40th Senate District, totaled $7.5 million, more than what was spent in 91 percent of U.S. House races that same year.
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