Almost 10 years ago, the U.S. Supreme Court ruled, in Citizens United v. FEC, that the First Amendment bars any limitation on independent election expenditures by corporations and unions. Then-Justice Anthony Kennedy, writing for the majority, said the court had now concluded “that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” and furthermore that the appearance of influence or access by donors “will not cause the electorate to lose faith in our democracy.”
Kennedy had several fine moments on the bench, but this was not one of them. The magnitude of this folly was soon manifest: The flood of dark money that Citizens United unleashed has distorted American politics beyond all recognition and done much to destroy the public’s “faith in democracy.”
Today, though, we call attention to another aspect of that ruling that was equally naive. The decision declared that, “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”
This has not only not happened with so-called independent expenditures. In New Hampshire, it is not even happening with direct campaign contributions to candidates, as the Concord Monitor reported last week.
Although the mechanism to file required campaign finance reports electronically has existed since 2016, according to the Monitor, few politicians are using it. That’s because the law that created the electronic filing system made it voluntary. Most office-seekers still file reports on paper, which the Secretary of State’s Office scans and posts online as PDFs.
What’s the difference? The text-searchable electronic version can be dissected and examined by reporters and the public to track individual donors, to sort contributions by size and date, and to break out in-state and out-of-state contributions.
However, the PDF version produced from paper filings — essentially a picture of each page — cannot be searched electronically and must be painstakingly analyzed line-by-line.
So much for the Kennedy pipe dream of internet transparency acting as a check on donors and recipients.
Of the three major candidates for governor, only Executive Councilor Andru Volinsky has filed electronically. Fellow Democrat state Sen. Dan Feltes initially filed on paper, but in response to questions from the Monitor, promised to post an online, searchable version. Republican incumbent Gov. Chris Sununu has remained silent, while filing the paper version.
What is particularly troubling is that all three candidates compiled the reports electronically in spreadsheet form, but Sununu and Feltes filed — as do many candidates — a printout that cannot be readily searched when posted electronically by the Secretary of State’s Office. It might be inferred from this that politicians do not want the public to know the sources of their campaign cash, and that the donors themselves are happy with the arrangement.
It’s worth noting that Sununu has raised nearly $850,000 so far, while Feltes topped $500,000.
The role of the Secretary of State’s Office in this situation invites scrutiny.
According to the Monitor, it urged legislators to make the system voluntary when it was being created. Some politicians have complained that the office does not provide adequate training and education to help candidates navigate the electronic filing system. And Feltes’ campaign said that it planned to post its electronic filing on its own website because “the Secretary of State’s website is difficult for the public to navigate regardless of how a campaign submits its filing.” If so, these failings must be remedied.
Clearly, electronic filing should be made mandatory, but there is one legitimate concern about doing so. The sheer size of the Legislature means that hundreds of House candidates, with varying degrees of computer access and literacy, would be required to use it. But they could be exempted from a mandate, at least initially, while all candidates for state Senate and higher office should be required to comply.
It’s a change that ought to be made without delay so the public can pull back the veil on the relationship between candidates and the donors who bankroll their campaigns.