October 11, 2011

Proposed NYC Independent Expenditure Rules: Registration and Preclearance

During the next two weeks, we will share our thoughts on the NYC Campaign Finance Board’s proposed rules on independent expenditure (IE) disclosure.  The CFB has scheduled a public hearing for October 27. Today, we look at two aspects of the proposed rules: registration and pre-clearance. Registration.  Under the proposed rules, individuals and entities must first register with the CFB before reporting IEs.  The required registration is akin to the treatment of political committees under NY State and City law. The purpose of the registration requirement is not explained, but it was probably designed to serve an administrative need to identify potential filers before the filing comes in (as the CFB does for candidate committee disclosure).  But the candidate model may not be optimal here, since for IEs registration is tantamount to giving the public (and potential opponents) advance notice of an intention to make IEs. Given that the Supreme Court has recognized greater constitutional protection for making IEs than for making political contributions, it is odd – to say the least – to impose a potentially chilling registration requirement on IEs where no such requirement applies to the making of political contributions.  And the chill would be a deep freeze should the filing of an IE report without advance registration trigger a civil penalty. Why can't the CFB simply collect the registration information it seeks in the first IE report? Pre-clearance. As with registration, the NYC Charter does not set forth a procedure for the CFB to pre-clear communications as against IE reporting requirements.  The proposed rules invite voluntary pre-clearance submissions to the CFB, which presumably would entail a CFB assessment of whether the proposed communication fits within its proposed definitions of express advocacy and electioneering communication. But is pre-clearance an appropriate or wise function for the CFB?  Since the procedure would apply prior to the dissemination of the communication, might the CFB appear to be taking on the role of censor? For example, what would the CFB do if presented with a proposed communication in the form of a t-shirt or website content containing the statement, “F__k  [Candidate Name]”, to be published or distributed in the time period covered by the electioneering communication definition?  (Since the CFB rules cover communications beyond the broadcast realm, the potential for inventive expression is limitless.) Might an Independent Spender seize on a CFB "pre-clearance" as some kind of broader imprimatur for his message?  Since communications are often controversial, does it make sense for the CFB to place itself in the center of multiple potential controversies before each election? Indeed, this element of the proposal almost reads like a “Kick Me” sign.  

Tag: New York City