Op-Ed: In Wake of Court Ruling, Time to Fix ‘Dark Money’ Bill

Ed Potosnak | October 15, 2019 | Opinion
Sidestepping New Jersey’s advocacy community resulted in a law that is both unfair to citizen-driven groups and unconstitutional
Ed Potosnak

In the rush of budget season, Trenton passed a poorly drafted, unfair and unconstitutional disclosure bill that imposes burdensome rules on grassroots advocacy organizations like the New Jersey League of Conservation Voters while protecting politically connected business and industry interests.

These new rules, which are the most invasive in the country, would have a chilling effect on advocates fighting for a stronger state while also providing a roadmap for corporate interests seeking to roll back important environmental protections.

Under the new law, nonprofit 501(c)(4) citizen-driven advocacy organizations like New Jersey LCV, the ACLU, Planned Parenthood, Garden State Equality and League of Women Voters would be subjected to new, onerous financial-disclosure requirements. Even groups that don’t engage in electoral activity would be forced to disclose their donors when working to strengthen protections for New Jersey families through public policy.

Conversely, 501(c)(6) trade groups — like the Chamber of Commerce, Petroleum Institute and Business & Industry Association — would be left untouched, creating a double standard that benefits powerful and politically connected corporations and puts ordinary residents seeking to make their voices heard at a massive disadvantage.

The bill was to be implemented this month.  However, U.S. District Court Judge Brian Martinotti recently issued a preliminary injunction to prevent the law from taking effect because it violates the First Amendment.

Making up for past mistakes

Now, the Legislature has an opportunity to correct the situation.

Assemblyman Andrew Zwicker and Sen. Troy Singleton, the bill’s main sponsors, started out with the best of intentions of getting dark money out of elections. However, after languishing in the Legislature for some time, the bill was rushed through so that it could be signed before the Legislature recessed, and many troubling amendments were adopted at the last minute that made it overly broad and unconstitutional.

In fact, several of the problems cited by the judge in his decision to put the law’s implementation on hold were the same concerns we raised throughout the legislative process.

Many of us in the nonprofit community share the goal of getting dark money out of politics. However, despite advocates’ repeated attempts to craft an effective and constitutional disclosure bill that would have leveled the playing field, our input was repeatedly brushed aside during the legislative process.  If the nonprofit advocacy community had been invited to fully participate in the debate, New Jersey would have a law on the books that would have passed constitutional muster and achieved our shared goal of shedding light on the people and entities financing election communications.

Price of ignoring advocacy community

Legislators were made fully aware of the bill’s flaws and should have seen this court decision coming. But because they chose to rush the bill through with all its problems, precious taxpayer dollars have now been wasted defending an unjust law with a predictable outcome: an injunction that prevents the new disclosure requirements from going into effect.

Unfortunately, what’s done is done. But it’s not too late for lawmakers to correct the mistakes of the past, fix this law and increase transparency in our elections. We stand ready to turn the page and work together with them on legislation that is both fair and constitutional.

We call on the Legislature to support a meaningful disclosure bill that treats grassroots organizations and powerful trade groups, like the state Chamber of Commerce, equally.

Throughout the debate over this legislation, we have heard misguided criticism from some who say that our concern about fairness in disclosure has nothing to do with environmental protections — or any other progressive issue. They are dead wrong.

Any law that empowers profit-driven corporate special interests, like the oil and gas industry, at the expense of grassroots nonprofit groups makes it more difficult for us to advance policies that protect the environment and transition us to a clean-energy future.

When the Koch brothers, energy monopolies, telecommunications giants and big banks play by a different set of rules than people-powered advocacy groups, New Jersey has a problem. When the interests of polluters are protected and the voices of climate-conscious advocates are silenced, our environment will be endangered.

That is why we are calling on the Legislature to pass a fix bill to hold polluters to the same standard as everybody else.

And to address the serious constitutional concerns raised by Judge Martinotti, any new disclosure bill must focus solely on elections and require all entities engaged in elections to meet the same standards for full disclosure.

Lumping in advocacy work from grassroots groups into laws meant to regulate election spending is confusing — particularly because advocates must already file lobbying disclosures with the state Election Law Enforcement Commission for many types of activity.

Legislators who are committed to fighting for a clean environment, clean energy, women’s rights and criminal-justice reform will need to step up to promote a bill that supports fair disclosure rules that put advocates on the same playing field as wealthy special interests. Now is the time for a fix.

We have heard a commitment from some lawmakers that a fix bill is coming. New Jerseyans are watching to ensure they follow through on their word.