Now that it's over, we can look back and ponder which independent groups might have had an impact on the election, which attack ads left a mark, and who might have blown millions of dollars.
But there's at least one group that doesn't want us to know anything. It's in court, suing to strike down the disclosure requirements that tell us who runs ads near an election, how much gets spent and, sometimes, who puts up the cash.
The Committee for Truth in Politics was launched by a North Carolina Republican operative in late September, and spent $1.2 million on anti-Obama ads. Here's one that criticized Obama's abortion stance and another that falsely accused him of supporting early release for sex offenders
The ads aired in the midst of the general election campaign, but the committee hasn't reported anything about them. We know only because we subscribe to the Campaign Media Analysis Group, which has developed a sophisticated system to track ads on TV and estimates how much they cost.
The committee, represented by Republican lawyer extraordinaire James Bopp, argues it shouldn't have to reveal a thing. Bopp has sued the Federal Election Commission, arguing that what the group spends on ads is none of the government's, or the public's, business.
"We believe that the U.S. Constitution protects them from having to file that report," says Bopp. "The problem is having to file a report at all. To be regulated at all. To be accountable to the government at all."
Bopp is building on his success in a Supreme Court case last year that struck down a critical campaign finance regulation. We delve into the legal logic after the jump...
As the law stands now, there are two basic kinds of election-related ads that require disclosure to the government and the public: Those that explicitly advocate for the support or defeat of a candidate (independent expenditures) and those that don't go that far but identify a candidate close to the election (electioneering communications). The Supreme Court, ruling last year on a Bopp lawsuit known as Wisconsin Right To Life, overturned some restrictions on the second kind of ads, so they can now be financed with corporate or union money.
Bopp argues that if an ad doesn't fall into the first category, it's not truly related to the election. Therefore, it doesn't fall under the purview of the FEC.
Tara Malloy, of the Campaign Legal Center, begs to differ. Her organization is filing amicus briefs in support of the FEC. Malloy says that even if the Supreme Court ruled against funding restrictions for electioneering communications, those ads are still about the election. Besides, she says, the court has upheld disclosure rules that have nothing to do with elections — like lobbying disclosure regulations.
"This is just sort of wishful thinking on the part of Bopp," she says.
It's also worth noting that the Supreme Court in 2003 let stand the restrictions on electioneering ads. That was when it ruled on the McCain-Feingold law — but it also predates the court's latest ideological shift and Bopp's Wisconsin case.
Rules saying who can or can't pay for an ad are harsh, and need to be weighed with extreme care, Malloy acknowledges. But rules for public disclosure are the "least restrictive type of campaign finance regulation," so they should face a lighter level of scrutiny, she argues. The Supreme Court, she says, has determined that disclosure in general is important for three reasons: to prevent corruption, to inform the electorate "and thereby ensure the integrity of the government," and to tell us what's happening so we can gauge if further regulation is needed.
"Most people, when they see an ad critical of a candidate shortly before an election, they are going to assume it has something to do with the election," Mallow says. "It would be very helpful for the citizen to know who's funding it, what their interests might be."
Bopp, on the other hand, makes an analogy to prove his point. What if, he says, journalists had to tell the government every time they wrote a story mentioning a federal candidate? What if they had to report which candidates they named, who published the story and who paid for it?
"Bottom line — that's the reason they wrote the First Amendment, to protect both citizens and the press from this sort of government regulation."
Bopp has appealed the Committee for Truth in Politics case to the 4th Circuit Court of Appeals. And he's got others pending. "The mushrooms are cropping up everywhere," as Malloy says.
Keep an eye on that Supreme Court docket.