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November 1, 2011

Gary Goldsmith Executive Director Minnesota Campaign Finance and Public Disclosure Board 190 Centennial Office Building 658 Cedar Street St. Paul, Minnesota 55155-1603 Dear Mr. Goldsmith: On June 30, the Campaign Finance Disclosure Board (the Board) took an important stand in supporting disclosure of money spent in support or opposition of a constitutional amendment campaign. That process included public testimony and adequate time for public review of the staff recommendations. Since then, the Board has taken numerous positions that have severely weakened the June 30 vote by creating potential loopholes that allow groups to spend money to influence the ballot amendment without disclosing those contributions. Common Cause Minnesota is concerned about the significant political pressure that is being placed on the Board and how that has impacted the recent decisions. The Board has a responsibility to promote public confidence in state government decision-making. Yet, that confidence is eroded when the Board overturns and weakens past decisions because of political pressure exerted on board members. In recent weeks, the Board has significantly narrowed the past definitions and therefore will allow groups to circumvent Minnesotas disclosure law. In 2010, the legislature sent the public and the Board a clear message about the value of disclosure. In fact, the chief author of the legislation recently wrote an op-ed in the Minneapolis Star Tribune praising the June 30 vote by the Board: In 2010, the Minnesota Legislature passed a law requiring corporations to disclose money they spend to influence our elections. The Legislature believed that disclosure of this spending was the best way for voters to evaluate the truth of the political ads bombarding them after the U.S. Supreme Court struck down Minnesota's bans on corporate campaign activities. The recent decision by the Board to narrow its definitions has weakened the law significantly, such that real disclosure is now unlikely to happen in Minnesota. As the Board moves forward, Common Cause Minnesota urges you to prevent further circumvention of the disclosure law by avoiding an inappropriately narrow definition of express advocacy.

The definition of express advocacy that has been promulgated by the Federal Election Commission provides a good model to address our circumvention concerns. See 11 C.F.R 100.22. Although this definition is somewhat lengthy, its point is to ensure that communications that can reasonably be interpreted only as appeals to vote for or against a candidate or ballot measure are treated as electionrelated advocacy. This definition (unlike the narrow approach promoted by disclosure opponents) ensures transparency, even when political spenders try to avoid disclosure by running ads that objectively advocate for or against a candidate or ballot measure but purposefully avoid magic words like vote for or vote against. This federal definition stands on firm constitutional ground. For example, a Virginia district court recently found that the federal definition, when used to determine whether communications should be subject to disclosure, was consistent with the First Amendment and not impermissibly vague. See Real Truth About Obama, Inc. v. FEC, 3:08-CV-483, ___ F. Supp. 2d ___, 2011 WL 2457730, at *9 (E.D. Va. June 16, 2011). The court easily applied the definition to find that two advertisements (which sharply criticized then-candidate Obamas record on abortion in the days before the 2008 presidential election) were the functional equivalent of express advocacy, even though neither ad directly instructed listeners to vote against Obama. Id. at *12. The U.S. Supreme Court in Citizens United similarly found that a feature-length film attacking Hillary Clintons qualification for office was the functional equivalent of express advocacy, even though Citizens United (which distributed the film) argued that the movie was just a documentary film that examines certain historical events. See Citizens United v. FEC, 130 S. Ct. 876, 889-90 (2010); see also Real Truth About Obama, 2011 WL 2457730, at *11. Common Cause Minnesota urges the Board to apply a similar definition of express advocacy in a way that is objective but prevents opponents of disclosure from creating a formalistic barrier to transparency. We believe that much of what gets described as sham issue advertising ought to be recognized as the functional equivalent of express advocacy, based on reasonable and objective criteria that could be applied by any member of the voting public. We urge the Board not to take an overly narrow approach to what constitutes express advocacy as it implements these rulesand to help steer the debate about what is electioneering and what is issue advocacy back to a conversation that makes sense to average voters and not just election law lawyers.

Sincerely,

Mike Dean Common Cause Minnesota

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