The campaign board is proposing changes to its recently released guidance documents. Those documents tell political committees and other groups that get involved in the ballot campaigns how to account for political donations and political expenditures.

The board is considering dropping a section that directed the board’s staff to look into donations that don’t fit neatly into the disclosure requirements.

Already the board has set up disclosure requirements for money spent “that expressly advocates the adoption or defeat of a ballot question measure” or communications that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a ballot question measure.”

But there may be campaign activity that isn’t as cut and dry. The board had included a provision for fundraising appeals that were more ambiguous:

The Board recognizes that communications beyond express advocacy or its functional equivalent may be communications to promote or defeat a ballot question. Staff is directed to provide further research and options for language to extend the definition of ballot question expenditure to these communications.

But at Tuesday’s meeting, the board is considering dropping that provision and that is a problem for government transparency groups like Common Cause Minnesota.

“The staff recommendation could allow millions of dollars of undisclosed money to flow into the ballot campaign in Minnesota,” Mike Dean, the group’s executive director, said in an email to the Minnesota Independent. “At the June 30 meeting, the Campaign Finance and Public Disclosure Board took an important position to protect Minnesotans right to know what special interest are funding the ballot amendment campaigns. Since then the board has begun to reverse that decision because of threats and intimidation from organizations that want to keep Minnesotans in the dark.”

Though two sides of the debate over the anti-gay marriage amendment will be subject to the board’s guidance, only one side has threatened not to follow the rules.

Earlier this month, Minnesota for Marriage said it would not comply with any of the new guidance set forth by the board opting only to follow older rules set up well before the Legislature created a new campaign finance reporting system in 2010. The group is urging Minnesotans to support the constitutional amendment.

Minnesota for Marriage is a partnership between the Catholic bishops, the Minnesota Family Council and the National Organization for Marriage (NOM). NOM and groups affiliated with it have attempted to shield donors and supporters by challenging existing public disclosure laws in almost a dozen states. It has also lost in almost every state the group has launched a challenge.

The board will take up a recommended changes at its meeting on Tuesday which will also include some language tweaks.

The board is dropping its plan to research when and how an organization might be given a waiver that would allow them to opt out of disclosing their donors or expenditures. The board is also proposing changes to language regarding implied fundraising pleas.

Dean said those changes could have serious consequences and that campaign finance loopholes can add up.

“Experience at the federal level has shown this approach creates a huge loophole,” Dean said. “For example, Karl Rove’s Crossroads GPS, a Section 501(c)(4) organization that reported over $16 million in independent campaign expenditures during the 2010 congressional campaign, disclosed none of its donors because none of its contributions were expressly earmarked for political ads.”

Dean added, “This recommendation will only further erode public confidence in government by allowing special interests to hide behind the loopholes created by the board.”

Minnesota campaign finance board requires disclosure
In 2010, the Minnesota Legislature unanimously passed, and Gov. Tim Pawlenty signed into law, legislation that outlined disclosure requirements in the wake of the United States Supreme Court decision in Citizens United that gave corporations the right to make expenditures in political campaigns, including ballot initiatives. Minnesota had previously banned corporate involvement in elections, and the state needed a new set of requirements.

Earlier this month, the Minnesota Campaign Finance and Public Disclosure Board released guidance for organizations working to gain support or opposition to ballot measures on how to disclose contributions and which donors should be disclosed.

In the Star Tribune on Friday, John Helmberger, chair of Minnesota for Marriage and CEO of the Minnesota Family Council, blasted the campaign finance board rules saying they would chill the free speech of churches.

“Nobody disagrees that voters are entitled to know who contributes to the marriage campaign. But the changes the Campaign Finance Board proposes are not authorized by law and would mislead the public, resulting in the disclosure of people who did not contribute to the campaign,” Helmberger wrote.

Minnesota for Marriage refuses to disclose
Minnesota for Marriage says it will not comply with the board’s requirements in the run-up to the 2012 election.

“Nobody disagrees that voters are entitled to know who contributes to the marriage campaign,” Helmberger wrote in Friday’s opinion piece, but the group was singing a different tune earlier this year.

At a public hearing by the campaign finance board involving rules regarding ballot initiatives, representatives of NOM and the Minnesota Family Council argued against any disclosures.

“To require groups, non profits like the Minnesota Family Council, to disclose their donors and make their donors names public would have a significant chilling effect on free speech. Even in Minnesota already it’s gotten heated in some respects,” said Tom Prichard of the Family Council. “The concern is harassment, property damage, a chilling effect. If I know I have to disclose my name, I’m not going to get involved with the Minnesota Family Council.”

He added, “I don’t think our organization should have to disclose our donors, period. We just don’t believe we should be forced to.”

Minnesota for Marriage sent an email to supporters on Monday claiming that the disclosure rules—which apply to both sides—were an attack on religious people.

The email title read, “Star Tribune Escalates Attack on Churches and Religious People” in reference to a Star Tribune editorial earlier this month in support of the campaign finance rules.

“Clearly, this is a blatant attempt to intimidate churches and other groups that take a stand for marriage and silence discussion of the marriage amendment; a clear violation of religious freedom and free speech,” wrote Helmberger. “Now that the marriage amendment has qualified for the ballot, the board is all of a sudden trying to change the rules of the game despite the fact there has been no change in state disclosure laws.”

Raising the specter of persecution
One of Helmberger’s main arguments is that if it’s required to disclose its donors, members of the LGBT community will attack those donors.

“Regrettably, some gay-marriage activists have seen that intimidation can be an effective campaign tactic, and it has become standard fare in any marriage campaign,” he wrote. “Evidence in various court proceedings document case after case of harassment—phone calls at home and work, calls and e-mails to employers, boycotts of someone’s employer, calls to clients, etc.”

But on Monday, a federal court in Washington found that claims by NOM, a member of Minnesota for Marriage, that it’s donors were harassed to be without merit. In that case, Doe v. Reed, NOM argued it didn’t have to disclose signers of a referendum petition for fear that people who sign the petition would be subject to harassment and violence. The court strongly disagreed:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as “serious and widespread.”

Setting up for a lawsuit
Transparency groups like Common Cause say that Minnesota for Marriage’s protestations are likely laying the groundwork for a lawsuit challenging the disclosure rules. NOM has filed suit in a half dozen states to try to shield its donors in ballot initiatives, elections, and lobbying efforts. It has yet to succeed.

“This is just another attempt to strike down Minnesota disclosure law,” said Mike Dean. “NOM has a long history of unsuccessfully challenging disclosure laws across the country.”

Rep. Ryan Winkler, DFL-Golden Valley, echoed Dean’s sentiments in his own opinion column in the Star Tribune.

“Given these groups’ actual record of avoiding disclosure and suing to block disclosure laws, the concern expressed by Helmberger about innocent small donors is an obvious smokescreen. The Minnesota rules they challenge already protect small donors, and protect donations made without an earmark for political spending,” Winkler wrote. “Here’s a good rule of thumb: Never trust a well-funded group hiring lawyers to hide information from the public. Especially if their only argument is the need to protect the privacy of donors whose donations are already safely hidden.”

The law Winkler refers to was a campaign finance bill passed by the Minnesota Legislature and signed by Gov. Tim Pawlenty in response to the U.S. Supreme Court’s Citizens United decision.

Dean wondered why groups like Minnesota for Marriage wanted to shield their donors from disclosure.

“Being part of a democracy is about standing up for what you believe in, not cowering in the bushes because you are afraid of what others will think. The real question is, what do these groups have to hide?”

Open government advocates say current regulations inadequate
Contrary to Helmberger’s claims, a churchgoer’s donation would likely never be reported to any government entity as long as her church never asked her to specifically contribute to the church’s efforts to pass the amendment.

For transparency groups like Common Cause Minnesota, that’s a problem.

“The Campaign Finance Board, against Common Cause’s advice, is actually making it easier for groups to avoid disclosure,” Common Cause’s Mike Dean told the Minnesota Independent. “They have said that those groups only need to disclose if they make an explicit request of financial support for the constitutional amendment.”

Dean said the campaign finance board watered down a statute passed in 2010 that called for stringent disclosure rules. In a letter to the board earlier this month, the group argued that the “express” and “implied” request scenarios were confusing and unnecessary and gave groups a loophole to get out of disclosing contributions.

“Instead of requiring organizations to comply with this lengthy and multi-pronged definition, the board could simply require disclosure of contributions made in response to any solicitation that mentions a ballot question—end of story,” Common Cause wrote. “The current definition, with its discussion of ‘express’ and ‘implied’ requests, is unnecessarily confusing and complicated. Moreover, the fact that the board believes it is obligated to include such a distinction suggests that the Board is taking a far more conservative approach to disclosure than is required or warranted.”

Dean said the board’s current rules would “open up an enormous and unnecessary loophole in Minnesota law.”

“Experience under comparable federal rules has shown that sophisticated donors are able to exploit such loopholes to avoid the transparency that is necessary for a well-informed democracy,” Dean said.

The Minnesota Campaign Finance and Public Disclosure Board ruled today that corporate donations to groups advocating for or against a constitutional amendment that would ban same-sex marriage must be disclosed. The Minnesota Family Council (MFC) and the National Organization for Marriage (NOM) argued that supporters of marriage equality would commit violence against their donors if they were made public. On Thursday, the board disagreed.

The campaign finance board met in mid-June to vote on how to implement new independent expenditure rules and how they would apply to the 2012 ballot initiative campaign to ban same-sex marriage in the Minnesota Constitution. NOM and MFC argued that no disclosures should have to be made for fear of reprisal from supporters of marriage equality.

“To require groups, non profits like the Minnesota Family Council, to disclose their donors and make their donors names public would have a significant chilling effect on free speech. Even in Minnesota already it’s gotten heated in some respects,” Prichard told the board. “The concern is harassment, property damage, a chilling effect. If I know I have to disclose my name, I’m not going to get involved with the Minnesota Family Council.”

He added that he had knowledge that in California during the 2008 Prop 8 campaign same-sex marriage supporters engaged in violence.

“They went after their employment, by challenging their employers. There was vandalism on certain organizations. I can think of one individual that his business suffered because he had to disclose. I don’t think our organization should have to disclose our donors, period. We just don’t believe we should be forced to.”

But a coalition of groups advocated just the opposite, that full disclosure is essential to a healthy democracy. Common Cause Minnesota, the League of Women Voters and the Brennen Center for Justice sent a letter to the board on Thursday morning criticizing the statements of NOM and MFC and urging the board to make the ballot process more transparent.

“Much like the boy who cries ‘wolf,’ it has become routine for groups like the National Organization for Marriage to complain that disclosure will leave them vulnerable to threats and harassment,” the letter stated. “The evidence shows otherwise. In reality, groups like NOM are largely complaining about the ordinary rough and tumble of political debate, particularly on an issue that touches people as personally and deeply as same-sex marriage.”

The groups said that full disclosure would ensure that voters have the best available information when they go to the polls.

“Knowing the author and funder of an ad campaign can help voters evaluate the credibility of the messenger, especially in the absence of active media scrutiny of the issue,” the letter said. “Voters would like to know: Is the majority of the money coming from out of state? Is the support from a large base of supporters or a few wealthy individuals? What interests do those contributing individuals represent? Knowing who is likely to benefit, or lose, from the outcome of a ballot question will help voters to evaluate both sides of a ballot initiative debate.”

On Thursday morning the board agreed and voted in favor of a resolution that would require disclosure of corporate donors to the campaigns involved in wooing voters in 2012.

“Disclosure is essential to ensure a fair and open public debate on the marriage amendment,” said Mike Dean of Common Cause Minnesota in reaction to the board’s decision. “The adopted rules will allow the public to know who is truly behind the political ads. This decision will hopefully bring some additional civility to the debate by forcing groups and donors to be accountable for the ads they run.”

NOM has attempted to shield its donors from disclosure requirements in many states including Maine, California, New York, Rhode Island, Minnesota and Iowa, and been the subject of campaign finance complaints or has sued to prevent the disclosure of its donors in those states.

Minneapolis-based retailer Target told investors on Wednesday that the company will not be taking sides on the anti–gay marriage amendment slated for the 2012 ballot. The shareholders meeting in Pittsburgh, the first held since a nationwide boycott targeted the stores last fall over its corporate contributions to Republican gubernatorial candidate Tom Emmer, drew protesters critical of the Supreme Court’s Citizens United decision and members of the LGBT community. Target’s announcement comes as Twin Cities LGBT Pride festivities get under way — an event for which Target is a major sponsor.

The Minnesota Legislature passed an amendment last month that would let voters decide whether to codify a ban on same-sex marriage in the Minnesota Constitution. State voters will decide that issue in 2012, though same-sex marriage is currently illegal in Minnesota.

“Our position at this particular time is that we are going to be neutral on that particular issue, as we would be on other social issues that have polarizing points of view,” CEO Gregg Steinhafel told shareholders. “We’re a retail store, we welcome everybody,” he added. “We have a broad team-member base, every shape and size and color. And so we are a very inclusive organization… We’re going to continue to monitor, we’re going to continue to assess, and see how that develops.”

Target took heat last fall when campaign finance reports showed Target giving $150,000 to MN Forward, an independent expenditure committee that produced ads in support of Emmer who has been a staunch opponent of rights for LGBT Minnesotans. The revelation sparked a nationwide boycott.

And at Wednesdays’ shareholders meeting the issue came up again and again. Nearly a dozen shareholders grilled Steinhafel on Target’s political giving, according to the Pioneer Press.

Target made some changes to its corporate political expenditures in February but, as the Minnesota Independent reported at the time, it was not enough to dissuade those critical of Target’s donation to Emmer.

Thomas Waters, advocacy chair of the Delta Foundation, an LGBT group in Pennsylvania, also attended the protest and noted that it’s incorrect to label Target as homophobic.

“One problem with that boycott effort was that Target got painted as being ‘homophobic.’ This isn’t really accurate,” he said. “Target, the corporation, has had business values of respecting everyone and being pro-gay in the sense of being welcoming and supporting of the LGBT community. That was still true, even while, as a corporation, they were giving vast sums of money, which was knowingly going to anti-gay politicians.”

He said that corporate giving to politicians that oppose rights for LGBT people was not in line with Target’s typical policies on inclusion.

“They acted in a way that was not aligned with their corporate values. That doesn’t make them homophobes, but it does call into question their value system,” he said. “Is their support for the LGBT community real? More likely, it is real, but there is a problem in the way the corporation acts and makes decisions regarding how they will use profits.”

Target has in the past been a major sponsor of Twin Cities LGBT Pride, where Target temporary tattoos and tchotchkes are ubiquitous. And the retailer will again be one of the prime sponsors of the monthlong series of events.

But on a larger scale, protesters at Wednesday’s shareholder meeting are concerned about unbridled corporate spending in political campaigns.

Mike Dean, executive director of Common Cause Minnesota, a group that works for more transparency in politics, attended the demonstration at the shareholders meeting in Pittsburgh.

“Target should stick to business and stop meddling in our democracy,” he said. “Target Corporation has failed to learn from the controversy last year by continuing to make corporate political donations.”

Reports filed with the Minnesota Campaign Finance and Public Disclosure Board last week indicate that independent expenditure group Minnesota’s Future has shifted its behavior after a complaint was filed with the board last month by the Minnesota chapter of Common Cause. That complaint alleged that Minnesota’s Future had failed to detail the full extent of donor information required by law in their last finance report.

Minnesota’s Future is one of the conservative state organizations that has played a central role in outside spending during this year’s gubernatorial campaign between Democrat Mark Dayton, Republican Tom Emmer and Independence Party candidate Tom Horner. The group has received the majority of its funds from the Republican Governors Association (RGA), and used it to run a number of television ads attacking Dayton.

Minnesota’s Future exists as part of a complicated web of organizations all designed to operate harmoniously with the goal of diverting the original source of funding for political ads. The process starts with the RGA, a national organization that rakes in cash from a wide number of avenues ranging from small individual donors to major corporations. The RGA has not actually donated funds to Minnesota’s Future itself; instead the RGA has contributed $2.3 million to a group called Minnesota Future LLC an organization technically separate from Minnesota’s Future. The LLC does not directly engage in political campaigning, and instead sends all of its nonoperational funds directly to Minnesota’s Future.

In their complaint, Common Cause charged that the LLC needed to file paperwork with the state board, something the group had not done by the 42-day pre-general election report. Minnesota’s Future LLC appears to have taken that criticism to heart, as the LLC received its own separate filing when this week’s report was released. But other areas of concern in Common Causes’ complaint persist in the new report.

The reports from the LLC still do not disclose the original origin of the the money for the RGA donations. The pages titled “Source of Funding for Contribution” are left completely blank in the report. Compare that to one of Minnesota Future LLC’s rival organizations — WIN Minnesota — that has received a massive cash infusion from the Democratic Governors Association. Much like the two Minnesota’s Future organizations, WIN Minnesota operates in tandem with a group known as Alliance for a Better Minnesota (ABM). WIN collects the large cash donations from the national Democrats and funnels it to ABM to run ads.

Unlike Minnesota Future LLC, WIN Minnesota details the original source of the DGA’s funding. It is through these fully completed finance reports that voters can become aware of the fact that national corporations such as AT&T are funding commercials against Emmer. Though the overall source of the RGA’s money is disclosed through IRS filings, by leaving large portions of the campaign finance report blank, Minnesota Future LLC prevents citizens from learning who specifically has invested.

Common Cause Minnesota’s Executive Director Mike Dean responded to these latest filings in a post on the group’s blog earlier this week:

“We are concerned that all the secret money flowing into Minnesota’s Future in an attempt to influence the outcome of the governor’s race,” said Mike Dean, Executive Director of Common Cause Minnesota. “Disclosure of these contributions is not only important in preventing corruption, but it also is vital to enforcing the law.”

At the September reporting deadline, the RGA was Minnesota’s Future’s sole donor outside of a small amount contributed by the group’s registered agent. The vast majority of Minnesota Future LLC’s funds continue to come through donations from the RGA, but Minnesota’s Future has expanded its donor bank slightly beyond the funds from the LLC.

This time around Minnesota’s Future gained $100,000 from a group called State Fund for Economic Growth LLC. That organization serves as a front for a local business much in the same way Minnesota Future LLC allows the RGA to distance itself from the political advertisements it funds. The State Fund for Economic Growth LLC has received all of its funds from banking company TCF Financial International. The group has not directly spent money on any Minnesota races, but contributed an even $100,000 to both Minnesota’s Future and MN Forward, the other conservative organization backing Emmer that has been the center of controversies this election cycle. Minnesota’s Future also picked up $25,000 from Hubbard Broadcasting, another major backer of MN Forward.

Patrick Caldwell is the American Independent’s Minnesota correspondent.

TCF Bank is one of the largest corporate contributors to independent expenditure committees in Minnesota this election cycle. The financial institution gave $250,000 to the State Fund for Economic Growth, LLC, which in turn gave money to MN Forward and the Taxpayer’s League of Minnesota, a group engaged in a lawsuit to strike down portions of Minnesota’s campaign finance disclosure laws. The arrangement has largely shielded TCF from scrutiny of the kind Target and Best Buy have received for their political contributions, and while it appears to be legal, watchdog groups wonder if its an effort to avoid transparency.

TCF gave the State Fund for Economic Growth (SFEG) $100,050 on Aug. 2 and another $150,000 on Sept. 19. Combined, the two donations make for one of the largest corporate expenditures this cycle. SFEG then directed $100,000 to MN Forward, a group that backs Republican Tom Emmer for governor, and $50,000 to the Taxpayer’s League.

SFEG registered with the state as an independent expenditure group on Aug. 16, two weeks after receiving TCF’s first contribution. The group, which also uses TCF Bank as its financial institution, is entirely funded by contributions from TCF.

The process of using an LLC as a mechanism to funnel money from a corporation to an independent expenditure committee has been used several times this year by both right- and left-leaning groups. Minnesota’s Future, its LLC and the Republican Governor’s Association came under criticism for using a similar setup, which is currently being investigated by the Minnesota Campaign Finance and Public Disclosure Board after a complaint from Common Cause Minnesota.

That group’s director, Mike Dean, said that while they are similar, TCF and SFEG followed the rules.

“This group is set up in very different ways,” said Dean. Minnesota’s Future LLC didn’t register with the finance board, while SFEG LLC did.

But he said the arrangement raises questions about why SFEG exists. TCF could have simply made its donations directly to MN Forward and the Taxpayer’s League. Dean suspects the added layer of an LLC is to help shield TCF from scrutiny.

“They created this scenario to disguise those contributions, and in that they were largely successful,” he said. He said the fallout from Target’s donations to MN Forward seems to have prompted the need to add the extra layer. In July, news of Target’s donations to the pro-Emmer committee launched protests and boycotts of the retail giant, forcing Target to respond and take a hit to its reputation.

That might be why TCF funneled money to the Taxpayer’s League of Minnesota. That group is pushing a lawsuit to overturn Minnesota’s requirements that corporations disclose their contributions. They lost their first case, but are appealing that decision. If they are successful, no company will face the kind of controversy Target has because the public will never know which corporations gave to independent committees or how much.

“It’s a clear example of how some corporations are reacting to the Target backlash,” said Dean of TCF’s maneuvering.

He noted that when MN Forward’s finance reports were released earlier this month, TCF was not listed among those contributors and the media missed it because it was funneled through the LLC. While 3M and Best Buy took some flak from liberal groups, TCF got a pass.

But because TCF and SFEG followed the rules, following the paper trail eventually reveals the donations. “That’s how we know the donations came from TCF,” said Dean.

Yet the setup between TCF and MN Forward and the Republican Governor’s Association and Minnesota’s Future are very similar, and for good reason: Both have LLCs that were set up by the same attorney, Dean said.

State Fund for Economic Growth

Common Cause Minnesota’s complaint against the Republican Governors Association (RGA), Minnesota’s Future and Minnesota’s Future LLC has entered the full investigation phase, according to Mike Dean, executive director of Common Cause Minnesota. The Campaign Finance and Public Disclosure Board cannot legally comment on any complaint until an investigation is complete and the board has made its ruling.

Common Cause Minnesota filed the complaint last week alleging that the three groups coordinated to funnel money from the RGA to Minnesota’s Future without disclosing all of the required donor information. The RGA has provided essentially all of the funding for Minnesota’s Future, which has used that money to run ads attacking Democratic gubernatorial candidate Mark Dayton.

“By the board moving forward it shows how serious [the complaint is],” Dean said. “I think that it is clear…that this is not a joke, and that they [the RGA and Minnesota's Future] need to take this seriously.”

If the Finance Board rules in Common Cause’s favor, each of the groups could be fined up to $1.7 million. Dean said that he expects to have the board’s decision after its next regularly scheduled monthly meeting on Monday, Nov. 1, the day before the general election.

Executive Director Gary Goldsmith said that the board generally tries to complete an investigation of a complaint before their next scheduled meeting. Because of the laws regulating what can be disclosed before the board rules, Goldsmith could not even confirm or deny having received a complaint from Common Cause, but offered an explanation for how the board investigates a typical complaint.

“Depending on the complaint, it may involve obtaining documents, reviewing reports that have been filed, getting documents from other sources,” Goldsmith said. “It may also involve discussions with parties or even testimonies from parties taken under oath. The parties are always given an opportunity to respond. Sometimes they’re asked specific questions, and sometimes they’re asked for a more general response.”

The investigation is handled by the board’s permanent staff, who then present their findings to the board itself at the monthly meetings.

“That investigation is prepared in written form then for board consideration,” Goldsmith said. “Typically what happens is staff will prepare a document that outlines the investigation, outlines the claims made by the complainant and the response that are received from the respondents.”

Patrick Caldwell is the American Independent’s Minnesota correspondent.

State Capitol. Photo: Wikipedia

When a stubborn government official refuses to release public information as required under Minnesota law, a costly and lengthy lawsuit is often a citizen’s only recourse.

But state Rep. Gene Pelowski, DFL-Winona, has authored a bill that will simplify, cheapen and shorten the process used by citizens and the media to gain access to public government information.

“In the transformation to the age of information, we should not only be able to see that public data is there, we should have access to it in a timely manner, Pelowski said. “We shouldn’t have anyone who is in possession of public data being able to say, ‘I’ll give it to you when I damn well please, or take me to court.’”

The reforms are an attempt to embrace the spirit of Minnesota’s data practice laws, which presumes that all government data is public and sets general standards for how to respond to data requests.

The bill’s the first major step in a series of open government reforms spurred by the Minnesota Newspaper Association (MNA).

The increasing complexity of Minnesota’s data practice law is an obstacle to citizen access, said MNA lawyer Mark Anfinson. The law has grown to about 115 pages in the last 25 years, so it’s often seen as simpler for officials to err on the side of withholding information than releasing it.

“It doesn’t just undermine the spirit [of the law], it fundamentally undermines the whole effective operation of the statute,” Anfinson said.

The news media once led the way in pushing government to disclose public data through lawsuits, Anfinson said, but that pressure to allow access has largely disappeared as the newspaper industry’s health deteriorated. Court cases can last up to a year and typically cost between $7,000 and $20,000 in legal fees.

“With their diminished resources they’re less likely to spend the money, which is harder to come by, on these sort of lawsuits,” Anfinson said. “If some people in government realize the great majority of folks concerned with information and the law aren’t going to sue them — it obviously dilutes the incentive to comply with the law.”

Instead of forcing citizens to take government to district court, the cases would be heard by administrative judges in the Minnesota Department of Administration, which volunteered to take the court cases from the overburdened circuit courts and has helped shape the bill over the last few months.

Holding hearings with administrative judges would allow the cases to be decided within six weeks, rather than the six months to a year typical of district court cases.

“That process will be much quicker, much cheaper and probably more reliable over all,” Anfinson said. “It will be more consistent in how the law is interpreted because you’ll have a small group of judges who over time will become more familiar with the law.”

Rep. Gene Pelowski

The high cost connected to circuit court cases would be replaced with a $1,000 fee, which would be refunded if the citizen wins the case against the government, along with up to $5,000 in lawyers fees.

“Virtually every case that’s ever been litigated in district court involving the data practice act is an exhibit in favor of this reform,” Anfinson said. “The present enforcement mechanism is basically broken.”

Although there’s been a lot of careful clarification of the bill’s language, it hasn’t run into much actual opposition, mostly because in addition to helping citizens and the media, it also benefits government bodies.

“Keeping the process simpler will cost them much less in legal fees when they’re defending cases and will knock out frivolous requests more effectively,” Anfinson said. “It will just clarify things in a way that will save the government a ton of money over time.”

Pelowski said the bill, which has bipartisan support, will likely be heard in the House Civil Justice committee this coming week. A companion bill sponsored by Sen. Don Betzold, DFL-Fridley, is also moving through the state Senate and will be heard next in the Senate Judiciary committee.

The state Information Policy and Analysis Division (IPAD) offers citizens and government bodies education on data practice issues. People who’d like to challenge a government body’s decision on a data practice request can contact the agency for a free, non-binding advisory opinion (pdf).

Under the current system, there’s a strong reluctance in government to release information that is rightly the public’s, said Minnesota Common Cause Executive Director Mike Dean.

Increased access to public information would allow citizens to hold their government accountable, he said.

“By shining a bright light on these things, you’ll tend to see less corruption, you’ll tend to see less problems within government,” Dean said. “The best disinfectant is sunlight.”

Ramsey County District Judge Kathleen Gearin didn’t buy plaintiff Robert Carney’s argument that the state’s Political Contribution Refund (PRF) program was a tax refund and not the kind of spending program that is vulnerable to gubernatorial unallotment (pdf).

Common Cause didn’t buy it either, and for that reason didn’t join the suit brought by Carney (who announced his candidacy for governor this week). But the group has been threatening since last summer to go to court on behalf of the PRF, which reimburses Minnesotans who make small political donations. And now they really might, said Mike Dean, the group’s executive director, in a statement.

Gearin’s ruling against Pawlenty’s use of unallotment in the earlier Brayton case “places a powerful check on the power of the state’s executive branch,” said Dean, “and the unallotment of the PCR should be viewed in that light.”

In the 2006 election cycle, the most recent for which data was available, 45 percent of Minnesota’s political donors gave $100 or less. By contrast, in 20 states less than 10 percent of contributions were from such small donors. The study examined the 36 states that held both gubernatorial and state legislative elections in 2006.

Under the Political Contribution Refund (PCR) program, enacted in 1992, individuals are eligible for a $50 rebate each year on donations made to local political parties and state candidates. But Pawlenty stripped out the program’s entire $10.4 million budget for the current biennium as part of his plan to unilaterally close the state’s $2.7 billion deficit.

Michael Malbin, executive director of the Campaign Finance Institute, says that Minnesota’s refund system is a model for promoting political engagement and effective governance.

“The states are suppose to be laboratories for reform,” Malbin notes. “Minnesota is the only state in the country that has this kind of a program. It is a big success. … When it goes to zero the laboratory’s gone.”

CFI also released data from a 2006 survey gauging how the program influenced the behavior of candidates and donors. For instance, one third of non-incumbents reported that they believed their small donors gave “mostly” because of the rebate program, while 23 percent of incumbents expressed the same sentiment. In addition, more than half of the candidates reported that they solicited donors they otherwise would have ignored if the program didn’t exist.

Less wealthy donors also reported that the program had a strong impact on their decision to make a contribution. For instance, 62 percent of donors making less than $40,000 stated that the refund system affected their decision to contribute, while roughly half of the donors with incomes between $40,000 and $100,000 expressed the same sentiment.

The bottom line, according to Malbin, is that politicians in Minnesota are less reliant on money from special interests such as corporations and labor unions than in other states.

“They’re getting it from the people who are lobbying them,” Malbin says of other states. “In Minnesota they’re getting it from the people they represent. It’s a much healthier system.”

Common Cause Minnesota is now seeking to rescue the PCR program. The advocacy group intends to lobby legislators to reinstate the system as early as possible when they reconvene in January, arguing that it has been instrumental in spurring political involvement and effective governance.

“I think Minnesota really is starting to lose that good-government reputation,” says Mike Dean, executive director of Common Cause Minnesota. “If we lose the PCR program, it’s going to be a quick slide.”

The nonprofit group is also mulling another alternative to save the refund program: suing the governor. Dean believes the governor has overstepped his executive authority by using his so-called unallotment power so broadly.

“We’re definitely heading in that direction at this point,” he says of a potential lawsuit. “We’re concerned that his use of the unallotment process is an abuse of power and it needs to be challenged.”