’Fugees from the war on political speech

Self-styled “watchdog” groups Democracy 21 and the Campaign Legal Center recently filed a complaint with the Federal Election Commission against “Pras” – a founding member of the hip-hop group the Fugees – and Black Men Vote, a now-defunct super PAC formed during the 2012 election to encourage young black men to vote. For good measure, they also forwarded the complaint to the nation’s first black attorney general for criminal prosecution. One might think (indeed, hope) they did so reluctantly.  

Neither the complaint nor a related report by the Center for Public Integrity alleged there was even a hint of corruption surrounding certain contributions associated with Pras that were made to the super PAC, and which are the subject of the complaint. Rather, the complainants presumably view Black Men Vote as collateral damage – refugees, if you will – in their battle to force full and complete disclosure in political spending.  

{mosads}At issue in the complaint are two contributions to Black Men Vote totaling $875,000 made shortly before the November 2012 election by a Florida-based limited liability company called SPM Holdings. Until the Center for Public Integrity focused on the transactions in a recent report and identified the LLC as belonging to Pras, apparently nobody had bothered to question the contributions. Perhaps that’s because nobody cared. 

According to the complaint, the contributions by SPM Holdings violated a provision in the federal campaign finance laws prohibiting making “contributions in the name of another,” and should have been publicly attributed on FEC reports as having come from Pras. Lacking any specific information about the company’s corporate structure, the complaint nonetheless asserts that FEC regulations promulgated long before the advent of super PACs (and which arguably do not apply in this context) require contributions from single-member LLCs and LLCs taxed as partnerships to be attributed to the individual members or partners. 

It is not sufficient for campaign finance “reformers,” however, for super PACs merely to identify the particular individuals associated with their corporate contributors on FEC reports. In a complaint filed with the Federal Communications Commission last year, the Campaign Legal Center, Common Cause, and the Sunlight Foundation also demanded that the FCC require the NextGen Climate Action super PAC to state in its television ad disclaimers that the ads were actually sponsored by Tom Steyer, the super PAC’s primary benefactor. 

The question is, does anyone outside of the campaign finance “reform” bubble actually care? Music artists sometimes go by their birth names. Other times, they use a stage name such as “Pras,” based on their real name (Praskazrel Michel). Some artists, such as the “Notorious B.I.G.” or “50 Cent,” go by names that are completely disassociated from their actual names. To the public, what artists choose to call themselves generally is irrelevant; what matters is the quality of their work. Why, then, should we put such disproportionate emphasis on a speaker’s identity when it comes to political speech? 

One might object that comparing the music world to political speech trivializes the latter. In reality, however, the two are often intertwined and, accordingly, receive similar First Amendment protections. After all, artists frequently have a profound influence on politics through their endorsements of candidates and their pronouncements on political issues, which also are commonly embedded in their work. In comparison to other First Amendment contexts, then, is it that far-fetched to view the complaint against Black Men Vote as being just a little bit unreasonable? 

Admittedly, there is an important anti-corruption rationale for the legal requirement that PACs accurately disclose their donors. If a corporation is seeking special favors from politicians by making contributions to a supportive super PAC, it should not be entitled to do so under a false name. However, that is not the justification being advanced for many of the demands for more disclosure these days. As former Obama White House Counsel Bob Bauer and NYU Law Professor Samuel Issacharoff wrote recently in a Politico op-ed, “It’s time to retire the tired discourse of corruption and return to the core objective of giving voters access to relevant information. Disclosure today is best understood as a service to voters.” In other words, the objective is disclosure simply for the sake of disclosure. 

Viewed through this lens, the complaint against Black Men Vote becomes more understandable, if not any more justifiable. No one apparently took any exception with the super PAC’s FEC reports until more than two and a half years after its fairly anodyne activities, and there is no suggestion of any corruption here. In light of this, one would think the campaign finance “reform” community could find a better target to pick on.

Wang is a political law attorney in Washington, D.C. and a senior fellow at the Center for Competitive Politics.