If you are in a car accident, the driver who hit you can't just drive away. Legally, he or she needs to stick around to face the consequences. But in the political arena, hit-and-run political ads are a growing phenomenon. The candidate attacked doesn't know who did it and thus can't properly respond — and whoever funds the ad can escape totally undetected, shielded from any public accountability. But thoughtful legislation by Del. Jon Cardin and Sen. Jamie Raskin could put an end to this problem in Maryland.
Like many other states, Maryland needs to update its elections laws to provide voters with transparency around political spending. Under current state law, Maryland requires zero reporting on independent political ads — that is, ones created independently of any candidate — that urge viewers to vote for or against someone up for election. As a result, Marylanders have been left in the dark about who is trying to influence their elections.
This also means that Maryland is now far outside the norm. Maryland's campaign finance disclosure law is weaker than that of its sister states and is decades behind federal law. Most states require at least minimal reporting around independent spending, and federal law has required this type of reporting in national elections since the 1970s.
As the Attorney General of Maryland's Advisory Committee on Campaign Finance detailed in a recent report, "the absence of a reporting requirement for independent expenditures represents a major weakness in the state's current disclosure laws." Attorney General Douglas Gansler rightly concluded that it's time for Maryland to beef up its disclosure regime — and keep up with the times.
Fortunately, both houses of the Maryland legislature are taking the attorney general's call to action seriously. They are considering bills to improve disclosure of political spending in the state, which would mean no more stealth political ads in future state elections. Delegate Cardin has already shown that he understands the importance of this issue. And Senator Raskin has been an outspoken leader on this issue nationally.
However, as Maryland improves its laws, it should go beyond requiring disclosure of independent expenditures. Legislators should also address the problem of electioneering communications — ads that criticize or praise a candidate on election eve without actually saying the word "vote." These sham commercials pretend to be about social or political issues, but, in fact, are nothing more than independent expenditures in thinly veiled disguise, trying to avoid disclosure. The Supreme Court has upheld disclosure of both types of advertisements repeatedly, and has praised such legislation for facilitating a more informed electorate.
With two bills under consideration in the Capitol, legislators should seize this opportunity to remedy this ongoing problem. Requiring robust reporting sunlight on Maryland's political advertisements would be a victory for the citizens of Maryland, and would avoid another tragic hit and run.
The writer is counsel at the Brennan Center for Justice and editor of the 2010 Edition of "Writing Reform: A Guide to Drafting State & Local Campaign Finance Laws."