Dirty Tricks

Minnesota's Fair Campaign Practices Act was designed to ensure fair elections. Critics say it's unconstitutional.

When Anoka County sheriff's deputies raided the Ham Lake home of Christine Gunhus during the early morning hours of August 30, it looked like a blow for good government. After all, it was Gunhus, the political director for the re-election campaign of Republican U.S. Senator Rod Grams, who was allegedly involved in an underhanded effort to sabotage the candidacy of Senate hopeful Mike Ciresi. The intrigue began in May, just before the DFL's state nominating convention, when some 150 party activists received a series of pseudonymous e-mails denouncing Ciresi as insufficiently liberal to carry the party's mantle. The four screeds, which attacked Ciresi for representing "anti-union" and "anti-environmentalist" corporations in his work as a trial lawyer, were signed with the name Katie Stevens, a self-identified DFLer and "committed progressive." As it turned out, neither the Ciresi campaign nor anyone else knew of or could locate a flesh-and-blood Katie Stevens. After some sleuthing, though, the Ciresi campaign made a potentially incriminating discovery: Gunhus's name, along with those of two other Grams aides, were listed in attachments on the e-mails.

Come July, citing Minnesota's Fair Campaign Practices Act, Ciresi complained to the Anoka County Attorney's Office, which sought and received a search warrant for Gunhus's home. There deputies confiscated two computers and nine diskettes, which are now the focus of a criminal probe. The investigation is based on provisions of the Act, which--with very narrow exceptions--requires that disseminators of campaign materials truthfully disclose their affiliation. If Gunhus or other Grams aides did indeed send the material (which Grams has repeatedly denied in public), the case would seem to be a slam-dunk. But in the view of Chuck Samuelson, the executive director of the Minnesota Civil Liberties Union (MCLU), it is not so simple. Samuelson contends the disclosure provision, which was added to the Act when it was overhauled in 1988, constitutes an overly broad restraint of speech that probably will not, and should not, pass muster in the courts. Samuelson acknowledges the MCLU's position on this matter has made strange bedfellows of his traditionally liberal organization and the right-leaning Grams. Nonetheless, the MCLU is urging Anoka County Attorney Robert Johnson to drop his investigation.

"We believe very strongly that this law is grossly unconstitutional, and that the judges will agree with us," Samuelson explains. "The fact of the matter is that if you or I'd sent out these same e-mails, nothing would have happened to us. But there is a double standard applied to people who are involved with campaigns."

In Minnesota, complaints based on the disclosure provision have been few and far between. Three years ago, however, two New Ulm school board candidates were charged with violating the law after they inadvertently failed to place the mandated disclosures in newspaper ads. A Brown County District Court judge dismissed the case on constitutional grounds, arguing the provision represented an overly broad restriction of free speech.

In other states, campaign disclosure laws similar to the one in Minnesota have also been successfully challenged. In Columbus, Ohio, in 1988, a woman named Margaret McIntyre was fined $100 for failing to include her name on leaflets she distributed opposing a school bond levy. McIntyre appealed. And in 1995 her case made it all the way to the U.S. Supreme Court, which then struck down Ohio's disclosure law as unconstitutional. In the 7-2 decision, Supreme Court Justice Clarence Thomas argued that anonymous political speech is part of a long and important tradition in American politics. He also noted that Alexander Hamilton, John Jay, and James Madison used a collective pseudonym in the publication of the Federalist Papers, the seminal series of essays that laid the groundwork for the adoption of the U.S. Constitution.

Nobody would confuse the ham-handed e-mail attacks on Ciresi with the Federalist Papers, observes St. Paul attorney Alan Weinblatt, an expert on Minnesota election law and staff counsel to the state DFL. More important, Weinblatt argues, the Legislature's modifications of the Minnesota Fair Campaign Practices Act in 1988 address some of the precise issues raised in the McIntyre decision. Among other things, those changes exempt from prosecution individuals who, like McIntyre, act independently of an organized campaign and who, like McIntyre, spend less than $300 to disseminate their materials.

"The McIntyre decision was really a little-old lady-in-tennis-shoes decision," Weinblatt says. "She was an individual, acting on her own, spending her own money, and distributing little leaflets on people's windshields. But if [the anti-Ciresi e-mail] is proven to be from the Grams campaign, the courts are not going to view them like they viewed poor Mrs. McIntyre."

For the most part, Weinblatt points out, courts tend to hold institutions such as political campaign organizations and newspapers to higher standards than individuals. He also notes that there is a separate provision of the Fair Campaign Practices Act that prohibits the dissemination of deliberate falsehoods in campaign materials: "If there is no Katie Stevens, then that's a false statement. And if there is such a person, but she's not the author of the piece, that's a false statement. In either case, I don't think the court would look at the same issues as they did in McIntyre."

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