Independent spending in New Jersey elections has grown so large and influential that lawmakers need to act soon and require transparency from special-interest groups, says the state’s election watchdog.
Special-interest groups have proliferated wildly this decade, and legislators have introduced bills in both houses to require them to disclose funders and make other changes designed to strengthen old-fashioned candidate committees and party committees. So far, there has been no action on the measures.
“At this time, when our very democracy is under threat, being able to shine a light on where the money used to influence elections comes from is even more critical than ever,” said Assemblyman Andrew Zwicker (D-Middlesex). He is one of the sponsors of A-1524, a bipartisan bill to revise the state’s campaign-finance laws to include disclosure of contributions by independent spending groups.
The need for greater transparency by organizations that spend money on ads to support or oppose a candidate was magnified following the U.S. Supreme Court’s 2010 Citizens United decision that allows these groups, in addition to corporations and unions, to make unlimited independent expenditures in an effort to influence an election. Last year, the $45.4 million in independent expenditures made in the gubernatorial and legislative races represented a third of all the money spent, according to an analysis of data from the New Jersey Election Law Enforcement Commission.
In a white paper released last week, ELEC showed that the amount of independent spending in legislative elections alone rose from 1/10 of 1 percent in 2009, the year before the Citizens United decision, to 32.5 percent in 2015, when just the Assembly was on the ballot. The large influx of independent spending that year made it the most expensive general election ever when the 80 Assembly seats were atop the ballot, with candidates and independent groups spending $33.5 million.
“Independent special-interest spending in New Jersey has risen relentlessly in statewide elections during the last decade,” said Joseph Donohue, ELEC’s deputy director. “In the fall of 2009 before the U.S. Supreme Court ruling sparked a national surge of independent spending, independent groups spent just $15,999 on the 2009 Assembly election. The $10.9 million spent in 2015 was a staggering 682 times higher.”
Donohue’s report analyzing the 2015 legislative elections states that the millions in independent spending helped Democrats unseat four incumbents, including one seat that Republicans had held for almost eight decades.
“Given that the largest infusion of independent spending targeted the three districts where four Assembly seats changed hands, it would be hard to claim it had no impact,” he said, adding that other factors influencing the election outcomes included changing demographics and a historically low turnout.
In the three legislative districts where Democrats picked up the seats — the party’s biggest one-year gain in a dozen years — independent groups spent some $2.3 million. In fact, in the 1st District, the southernmost in the state, candidates outspent independent groups by less than $3,000.
Independent groups spent $2.1 million in the 2nd District alone, in this case defending an incumbent of each party against challengers. This district, which includes Atlantic City, has had some of the closest election margins in the state in the past 15 years and still has split representation, with a Republican in the Senate and two Democrats in the Assembly.
State law requires candidates and political parties to file reports detailing who gave them money, for contributions of at least $300, and how they spent it. Groups that spend money independently of a candidate must report expenditures of more $1,600 in a campaign, but there is no requirement to disclose who provided the funds.
Hiding behind a name?
Last year, people may have seen ads supporting several legislative candidates and opposing one in particular — Senate President Stephen Sweeney (D-Gloucester) — that were paid for by Garden State Forward. But unless they did some investigating, they probably would not have known that the group funding Garden State Forward was the New Jersey Education Association. Garden State Forward spent more than $8 million in the 2017 legislative and gubernatorial elections, according to ELEC data.
The election watchdog said it is important for the public to be able to see who is backing candidates regardless of whether it is through direct contributions or by giving to an independent group. At least 23 states, including Delaware, New York, and Pennsylvania, and the federal government have enacted at least some laws requiring independent spenders that advertise in support of or against candidates to disclose their funders.
“Since independent spending often is used for some of the most scorching broadsides against candidates, voters have a right to know what persons or groups are behind these advertisements so they can decide whether they are credible,” Donohue said, adding that in its Citizens United decision, the Supreme Court upheld the right to require these groups to fully disclose contributions. “Regrettably, New Jersey’s anemically weak law mandates no such disclosure.”
While some groups have voluntarily disclosed information about donors in the past, there is no state law requiring them to do so, and others disclose nothing.
Increasing the transparency of these independent groups is one of a series of reforms for which ELEC has been advocating for several years.
Zwicker’s bill, which is S-1500, co-sponsored in the Senate by Sens. Troy Singleton (D-Burlington) and Linda Greenstein (D-Middlesex), embodies the spirit, if not the letter, of many of those recommendations.
For instance, ELEC recommends that independent groups identify all contributions of at least $5,000. The bills set the same $300 contribution disclosure threshold for independent committees as for all other candidates and political committees.
“The bill would treat independent expenditures just like every other campaign contribution: Where did the money come from and how was it spent?” said Zwicker, the challenger who in 2015 unseated a Republican in central Jersey’s 16th District, becoming the first Democrat to win a seat in that district in 80 years.
The legislation would also increase the amounts that individuals, businesses, unions, parties, candidates, and other groups could contribute to candidates and parties as a way to try to mute the influence of the independent spenders. While corporations, unions, and other independent groups are allowed under the Citizens United ruling to spend unlimited amounts of money on a race, New Jersey law setting contribution limits for candidates other than governor and parties has not changed since 2005.
For instance, it would raise the amount a candidate could receive from any individual or business from $2,600 per election to $3,000 and from any political action committee from $8,200 to $9,300 per election. It would also raise the amounts that the parties could receive each year from an individual donor, with the biggest increase to county committees, from $37,000 to $42,000 annually. And a national political party could give up to $82,000 to the state party each year, a $10,000 increase.
The bills would also repeal the current prohibition on the transfer of funds between county party committees during the first half of the year. That was enacted to try to stop what was seen as a way for the parties to get around contribution limits by transferring money from one county to another and then to a candidate.
But that practice is now seen as much less threatening than the large amounts independent groups are spending. ELEC executive director Jeffrey Brindle has said that since the political parties are more accountable, strengthening their role in election financing would improve transparency in the process.
There’s a separate pending bill, A-1957, with Republican sponsors who include Assembly Minority Leader Jon Bramnick of Union County, that would achieve the same goals as the Zwicker and Singleton bills, while also amending the reporting rules for businesses that make campaign contributions while holding public contracts under the state’s so-called pay-to-play laws.
All the measures are pending before committees in their respective houses. Zwicker said his goal is to push for consideration of his legislation in the latter half of the year, after the Legislature completes its review of the state budget. He said that given all the grassroots activism that has sprung up around the state in the wake of the 2016 election, there is public support for campaign-finance reform.
“There will never be a perfect system,” Zwicker said, “but at least if you can shine a light and be able to follow the money, that’s something.”