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PostPosted: 12/31/10 4:25 am • # 1 
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Privacy for people, not corporations

The Supreme Court is scheduled to hear an important privacy case involving AT&T in January.
By ALAN B. MORRISON | 12/30/10 4:31 AM EST Updated: 12/30/10 3:01 PM EST

Maintaining personal privacy is a right of every American. Without good reason, an individual's medical, financial and other information is no one else's business. If the government has a legitimate reason to obtain the information, it has a moral as well as legal obligation to keep it private.

Those principles have been extended to nonprofit corporations over the years. For example, when the state of Alabama wanted the membership list of the local chapter of the National Association for the Advancement of Colored People in the 1950s, the Supreme Court properly ruled that the state needed compelling reasons given the real threat of retaliation against the organization's supporters. Even though the Internal Revenue Service has the right to obtain the names of major supporters of tax-exempt organizations and the sizes of their gifts, the agency is required to keep that information secret to protect privacy.

Many similar protections are available for the tax returns of for-profit corporations — though they don't contain medical or personal information similar to individual returns. Businesses regularly submit other information to the government, including commercial information that, if disclosed, could aid competitors and should, therefore, not be shared.

In a case that the Supreme Court is scheduled to hear in January, AT&T is seeking to extend this protection, arguing that the corporation is entitled to invoke the personal privacy exemption in the Freedom of Information Act to keep secret all documents it submitted to the Federal Communications Commission as part of an investigation.

The government and other interested parties are rightly opposing AT&T. But there is a bigger problem with the laws that afford broad confidentiality to corporate business records: They prevent the public from learning how businesses are seeking to influence public policy.

Many corporations recognize that they have to participate in major public policy issues to protect their own bottom line. So they spend money on lobbying, elections and contributions to nonprofit advocacy organizations. They are permitted to keep much of this secret even though revealing their expenditures wouldn't invade the personal privacy of any individual or provide competitors with valuable inside information.
To be sure, a company that supports a political candidate may be caught in a significant backlash — as Target found out when it supported a probusiness conservative who the company did not realize opposes same-sex marriage. But there is no reason why the government should support a company's desire to shield its efforts to influence elections or public debate.

In a recent case, the National Association of Manufacturers claimed it was unconstitutional to require it to disclose the names of corporations that made significant contributions to its lobbying efforts and took part in developing its lobbying strategy. But the court rightly rejected the NAM's claims.

That was an important first step — one the Supreme Court will hopefully follow with AT&T's case. But Congress needs to go further by changing the law so businesses have no privacy protections unless the information could be used by their competitors — which would not have protected Target.        

The Supreme Court's Citizens United v. Federal Election Commission decision allows corporations to spend as much as they want to support or oppose candidates for elective office. If they take out their own ads, the law requires that sponsors be disclosed. As a result, most corporate expenditures are made indirectly, through other entities that may not be required to make prompt disclosures under current campaign finance laws -- depending on factors like how those entities are organized, whether they make contributions to candidates or political parties and the amount of money they devote to elections compared to other activities.

These variations are a big reason why congressional efforts to assure the disclosure of the sources of money spent under Citizens United produced such a complex bill that it enabled opponents to claim that its burdens would prevent corporations from exercising their new constitutional right to electioneer.

In order to avoid such complications, donors and recipients should be mandated to disclose contributions above a certain size -- perhaps $2,500, or slightly more than any person can now give a candidate for federal office -- by for-profit corporations, at least annually. If the sums are very large, they should be disclosed promptly after they are received.

With this approach, it would not matter how the money is used -- simplifying the process of deciding which contributions can be kept secret and which should be made public.

The lines between electioneering, lobbying and otherwise influencing public policy are unclear, and money spent on one method is often an acceptable substitute for another. But, more fundamentally, if a corporation has no legitimate privacy or other interest in keeping any of their contributions secret, all should be disclosed.

Under this system, the tax and election law status of the recipient organization would be irrelevant. So every nonprofit -- from local museums, to the National Rifle Association, the American Civil Liberties Union, or the pre-election upstart -- would have to disclose all significant corporate contributions.

Consider that a few years ago, the public learned that the ACLU had accepted large donations from Philip Morris while taking First Amendment positions that helped the tobacco industry's effort to prevent meaningful regulation of its advertising. The ACLU may have felt comfortable accepting money from Philip Morris, but some would-be donors declined to give as a result of the contributions.

All grants from charitable donors like the Ford Foundation should also be disclosed, no matter who the recipient is, because drawing lines among nonprofits would not be worth the effort.

Moreover, regardless of whether donations are used by hospitals to treat the sick or by museums to display great art, there is no corporate right to privacy. Nor is there any other reason why donations should be kept secret.

The Supreme Court has ruled that corporations have many, but not all, of the constitutional rights of human beings. But the right to personal privacy is not one.

With that understanding, Congress should require that all significant donations from corporations that might affect elections, legislative debates or other public policy decisions be fully and promptly disclosed.

The Citizens United decision is only the most recent reminder why this change should be made now.

Alan B. Morrison is associate dean for public interest and public service law at George Washington Law School.


PostPosted: 12/31/10 4:43 am • # 2 
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I agree 100% with Mr Morrison's opinion and reasoning here ~ and I deeply and will forever believe that Citizens United is the single most damaging USSC decision in memory ~ while corporations are entitled to protection of their 'proprietary information', corporate donations do NOT fall under that umbrella ~


PostPosted: 12/31/10 5:14 am • # 3 
The problem is not the Citizens United decision - that decision properly upheld the principle of free speech protected by the First Amendment.  Political contributions, regardless of their source or size, should be fully disclosed so voters have the information they need to assess the political environment.  Morrison's approach is a good one.  There should be no secrets about the source of funds used to finance political ads and campaign efforts.

PostPosted: 12/31/10 6:38 am • # 4 
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There should be no secrets about the source of funds used to finance political ads and campaign efforts.

With "should" being the key word.

And then there's this...

GOP PACs hum in advance of 2012

WASHINGTON — Six prominent Republicans considering challenging President Obama in 2012 have raised millions in campaign accounts that allow them to get around federal campaign laws that limit presidential fundraising.

By law, presidential contenders cannot collect money for the race until they establish an exploratory or a presidential fundraising committee.

However, Republicans and Democrats in recent elections have raised money in separate accounts — known as political action committees (PACs) — to build campaign organizations. It is not illegal.

The six have used their PACS to pay for activities such as political consulting and travel that can advance their White House ambitions. They are Mississippi Gov. Haley Barbour, former House speaker Newt Gingrich, former Arkansas governor Mike Huckabee, former Alaska governor Sarah Palin, Minnesota Gov. Tim Pawlenty and former Massachusetts governor Mitt Romney.

Campaign-finance watchdogs, such as Paul Ryan of the Campaign Legal Center, say the activity skirts the intent of presidential fundraising accounts, which have stricter contribution limits. Individuals can donate up to $10,000 over a two-year election cycle to a federal PAC, but no more than $4,800 to a presidential campaign.

In addition, Barbour and Romney have created fundraising accounts in states that allow their PACs to receive corporate donations. Federal law bars corporations from giving directly to presidential and congressional candidates.

"Contribution limits exist to reduce the threat of corruption," Ryan said. "These slush funds that potential presidential candidates are setting up violate at the very least the spirit of those … limits."

Roughly $1 of every $10 of federal PAC money raised by the six potential GOP contenders has been spent on contributions to federal candidates and committees through Nov. 22, a USA TODAY analysis of campaign-finance reports shows.

Barbour has three PACs. The PACs help him "participate politically both in Mississippi and around the country," said Henry Barbour, a nephew and top political adviser.

Other Republicans using PACs:

•Romney, who has raised nearly $9.2 million in the past two years through a federal PAC and PACs in five states.

Fourteen percent went to candidates and groups. Spokesman Eric Fehrnstrom said the PACs "were formed to help elect Republican candidates and promote conservative principles."

•Palin, who has raised more than $5.4 million. The PAC gave $516,000 to federal candidates and committees in the 2010 election. Treasurer Tim Crawford said Palin started the PAC to "support the candidates and causes that she wants to support."

PostPosted: 12/31/10 7:49 am • # 5 
With "should" being the key word.

Congress has the responsibility to enact new legislation to address the current deficiencies in campaign finance laws that have come to the surface in light of the Citizens United decision.

The article you posted has nothing to do with the subject of the OP because the federal PAC's being set up can't accept corporate contributions, and the contributions they do receive are subject to disclosure.

PostPosted: 12/31/10 9:44 am • # 6 
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gopqed wrote:
With "should" being the key word.

Congress has the responsibility to enact new legislation to address the current deficiencies in campaign finance laws that have come to the surface in light of the Citizens United decision.

The article you posted has nothing to do with the subject of the OP because the federal PAC's being set up can't accept corporate contributions, and the contributions they do receive are subject to disclosure.
I didn't mean to imply that the article specifically related to the OP, only that it also dealt with campaign money.

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