Election laws grow more confusing
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Two years ago, I wrote in this space that New Hampshire election laws had become confused and irrelevant. The situation has not improved.
This year, another brick in the crumbling wall of campaign finance limits has come tumbling down. If you’re a First Amendment zealot like me, this isn’t necessarily a bad thing. If you’re a Granny D or John McCain disciple, it’s a portent of doom.
You may have read in the papers that New Hampshire recently changed its laws to allow people of the same sex to get married. Some people, including a number of Republicans candidates, want to change the law back. Others would like to keep the new law in place. Both sides support candidates who agree with them and oppose candidate who disagree. I hope we can all agree that all of this is proper in a democratic republic.
A group calling itself New
Hampshire Republicans for Freedom and Equality formed a political action committee to support GOP candidates who opposed repeal of the gay marriage law. To fund these expenditures, independent of the House candidates they were seeking to help, the group took $100,000 from Paul Singer of New York.
Singer is one of the top Republican donors in the country. This cycle alone, he has donated $1 million to Restore Our Future, the super-PAC supporting presidential candidate Mitt Romney. And he has set up the American Unity PAC with another $1 million to support marriage equality.
New Hampshire law has always limited contributions to PACs to $5,000. Cornerstone Action, an advocacy group opposed to the gay marriage law, filed a complaint against New Hampshire Republicans for Freedom and Equality for accepting a donation so far above the limit.
But an Aug. 1 letter from New Hampshire Assistant Attorney General Matt Mavrogeorge to Secretary of State Bill Gardner argues that the U.S. Supreme Court’s Citizens United decision renders moot New Hampshire limits on PACs making independent expenditures and advised Gardner not to enforce the $5,000 limit.
The letter does not address New Hampshire registration and disclosures law, nor does it remove the contribution cap to PACs that coordinate their efforts with candidates, or donate directly to their campaigns.
And thus, the text of New Hampshire’s campaign finance laws become a little less relevant. Over the years courts, the attorney general and the secretary of state have been forced to whittle down the campaign finance limits put in place by the Legislature.
Onerous spending caps were made voluntary and unenforceable. Candidates, and even incumbent officeholders, were exempted from disclosure and donation provisions by our late filing period, which doesn’t consider anyone subject to the law until five month before the election. Limits on corporate and union contributions to candidates were overturned by the U.S. District Court.
For over a decade, the Legislature has seen the structure of our campaign finance laws come apart piece by piece. And it has been unable or unwilling to do anything about it.
I would like to see fairly loose regulations on political speech but require officeholders and would-be challengers to disclose their donations throughout the 24-month election cycle. I don’t think any state limits on independent political speech are warranted or constitutional. The editorial board of this newspaper disagrees quite strongly with me on this point.
As I did two years ago, I invite the next Legislature to address the smoldering ruin of our campaign finance laws and rebuild something rational in its place. The current Legislature came close, putting together a proposal that finally cut out the vestigial voluntary spending caps, and rationalizing donation limits to candidates and their affiliated PACs. But a disagreement over how high to set the limit and whether corporate and union donations would be allowed, scuttled the bill in conference.
Unless and until the Legislature reasserts its proper role to write our laws, we will be left with a confusing hodge-podge of outdated and unenforceable campaign laws. We’ll see both parties file election law complaints against candidates for violating provisions in the law that are no longer valid. We’ll see both sides take advantage of the confusion to accuse their opponents of dirty tricks.
One of the primary functions of law is to clearly establish the rules we have to live by. When it comes to campaigns, our current laws fail that test.
Grant Bosse is vice president for media for the Josiah Bartlett Center for Public Policy, a free market think tank based in Concord.
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