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Testimony of Joanna Zdanys, Counsel, and Ian Vandewalker, Senior Counsel,

Brennan Center for Justice at NYU School of Law 1
In Support of S. 1500
Submitted to Members of the New Jersey Senate Budget and Appropriations Committee
January 17, 2019
The Brennan Center for Justice at NYU School of Law appreciates the opportunity to
testify in support of Senate Bill No. 1500 (“S. 1500”). 2 This legislation would fortify the
integrity of New Jersey elections by combatting the growing scourge of anonymous spending
through reasonable and constitutionally sound means. 3 We support the bill and urge the
legislature to pass it as soon as possible.
I. Dark money is a threat to democracy
After Citizens United and other recent cases opened the floodgates of independent
election spending, outside actors have poured exorbitant sums of money into political campaigns
across the country. Such has been the case in New Jersey, which has seen a surge in independent
spending in recent years. According to an April 2018 report by the New Jersey Election Law
Enforcement Commission (“ELEC”), independent groups spent $112 million in gubernatorial
and legislative elections between 2007 and 2017, representing 93% of all independent spending
since 1977. 4 That same report showed that independent groups spent over $10.9 million on
general election races for state Assembly in 2015 – nearly 692 times the $15,999 that

1
The Brennan Center is a non-partisan public policy and law institute that focuses on the fundamental issues of
democracy and justice. The opinions expressed in this testimony are only those of the Brennan Center and do not
necessarily reflect the opinions of NYU School of Law.
2
The Brennan Center also supports S. 1500’s companion bill in the Assembly (A.1524), introduced by Assembly
members Zwicker, Benson, and Sumter.
3
We note that the legislation contains other amendments to New Jersey law, including amendments to existing
contribution limits and a repeal of the current ban on intraparty transfers between county political parties between
January 1 and June 30 of each year. Our testimony is limited to the bill’s provisions concerning independent
expenditures.
4
New Jersey Election Law Enforcement Commission, White Paper No. 27: Legislative Election 2015: Big
Independent Spending, Big Assembly Shakeup, 26 (Apr. 2018),
https://www.elec.state.nj.us/pdffiles/whitepapers/white27.pdf.
independent groups spent on the same races in 2009, the year before Citizens United was
decided. 5
An enduring feature of independent election spending nationwide is that it has come from
entities that do not publicly disclose their donors, a phenomenon often referred to as “dark
money.” 6 Nonprofit organizations have become particularly popular conduits for anonymous
election spending. 7 Unlike political action committees, nonprofits traditionally have not been
required to disclose their donors publicly even when they engage in election spending. 8 This is a
gap that persists in New Jersey’s law and, as ELEC has observed, leaves its voters to rely on the
willingness of independent spenders to disclose their contributions and expenditures voluntarily,
if at all. 9
This should be cause for grave concern. Dark money poses a significant threat to
democracy. It thwarts accountability for misleading political messages and robs voters of the
information necessary to properly evaluate them. 10 And, dark money has a particularly
pernicious effect at the state and local levels. In 2016, the Brennan Center issued a
comprehensive study of dark money in state elections. 11 It found that, because a great deal of
power over economic matters is subject to direct election at the state level, dark money
“frequently flows from special interests with a direct and immediate economic stake in the
outcome of a contest.” 12 The generally lower costs of state and local elections, compared to
federal elections, can make dark money even more powerful in this context. 13
With S. 1500, the Legislature can help combat the distorting effects of dark money.
Robust disclosure requirements help voters make informed choices that align with their policy
preferences. Knowing who is spending money to influence a race is “more credible than cheap
talk, and it allows voters a sense of how important the election of a particular candidate is for

5
Id. at 1, 3; see also Colleen O’Dea, Curbing the Influence of Special-Interest Groups in NJ Elections, NJ
SPOTLIGHT (Apr. 10, 2018), https://www.njspotlight.com/stories/18/04/10/curbing-the-influence-of-special-interest-
groups-on-nj-elections/ (quoting ELEC Deputy Director Joseph Donohue concerning independent expenditures in
New Jersey before and after Citizens United).
6
Chisun Lee et al., Secret Spending in the States 3, BRENNAN CTR. FOR JUSTICE (2016),
https://www.brennancenter.org/sites/default/files/analysis/Secret_Spending_in_the_States.pdf.
7
See id.at 2.
8
Id.
9
New Jersey Election Law Enforcement Commission, White Paper No. 27, at 26-27 (acknowledging that, while
some groups have voluntarily disclosed the source of their funds, there is a “real risk for future elections because
there is no guarantee this trend will continue”).
10
Lee et al., Secret Spending in the States 10.
11
See generally id.
12
Id. at 3.
13
Id.

2
[an] interest group.” 14 Such information is also useful to voters in ballot races for understanding
the overall interests at stake and evaluating where they stand in relation to those interests. 15 By
requiring disclosure by what it calls “independent expenditure committees,” S. 1500 will make
important strides in bringing dark money spending to light.
II. S. 1500 is a robust and reasonable means of bringing transparency to New Jersey
elections
S. 1500 is a robust and reasonable means to increase transparency, accountability, and public
confidence in elections and government. By closing significant loopholes in New Jersey’s
campaign finance regime, the legislation will help to deter corruption and the circumvention of
existing anti-corruption laws and disclosure rules – fundamental concerns for democracy that are
well recognized in the Supreme Court’s jurisprudence. 16
The bill addresses the most serious aspect of the dark money problem: the spending and
donating of large sums for election purposes by nonprofits that do not face public accountability.
S. 1500 creates the new category of “independent expenditure committee” for politically active
501(c)(4) nonprofits and 527 organizations. 17 To fall within the definition of an “independent
expenditure committee,” such an organization must raise or spend $3,000 or more in the
aggregate annually to engage in election activity – “influencing or attempting to influence the
outcome” of any election for elective office or a public question. 18 Like other types of
committees, the bill directs independent expenditure committees to file regular disclosure
reports. 19 However, independent expenditure committees need not report contributions or
expenditures under $300, easing nonprofits’ compliance with the bill’s requirements. 20
The bill also provides a new definition for what type of communication constitutes an
“independent expenditure” and defines “electioneering communication” for the first time. An
“independent expenditure” is an expenditure expressly advocating the election or defeat of a

14
Elizabeth Garrett, The William J. Brennan Lecture in Constitutional Law: The Future of Campaign Finance
Reform Laws in the Courts and in Congress, 27 OKLA. CITY U. L. REV. 665, 680 (2002).
15
Elizabeth Garrett & Daniel A. Smith, Veiled Political Actors and Campaign Disclosure Laws in Direct
Democracy, 4 ELECTION L.J. 295, 298 (2015) (“Knowing that the oil and gas industry spent substantial sums to
support or oppose a ballot initiative affecting the environment provides a credible signal of the industry’s views on
the initiative and of the intensity with which its members hold such views. A voter can then determine, perhaps also
with information about the Sierra Club’s spending behavior, whether passage of the ballot question is likely to be in
her interest, without knowing more about the details of the proposal.”).
16
See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 364 (2010) (“Political speech is so ingrained in
our culture that speakers find ways to circumvent campaign finance laws.”); McConnell v. Federal Election
Comm’n, 540 U.S. 93, 176 (2003) (noting, in context of regulation of solicitations, that “Congress’ concerns about
circumvention are not merely hypothetical”).
17
S. 1500 § 1(t).
18
Id.
19
Id. § 2 (adding new N.J.A.C. § 19:44A-8(8)(d)).
20
Id.

3
clearly identified candidate or public question. 21 The bill defines an “electioneering
communication” as a communication with a value of at least $10,000 that either refers to a
clearly identified candidate for office and promotes or opposes a candidate for that office, or
promotes or opposes a public question. 22 Both independent expenditures and electioneering
communications would be subject to the bill’s new transparency requirements.
The Supreme Court has long recognized that disclosure provisions such as these serve
vitally important government interests, including “providing the electorate with information,
deterring actual corruption and avoiding any appearance thereof.” 23 As such, campaign finance
disclosure requirements like those proposed in S. 1500 are routinely upheld. In a long line of
cases spanning over three decades – from Buckley v. Valeo to Citizens United v. Federal Election
Commission and beyond – the Supreme Court has consistently and repeatedly reaffirmed the
constitutionality of disclosure requirements. Indeed, even while invalidating other campaign
finance laws, the Court resoundingly upheld disclosure’s constitutionality by an 8-1 vote in
Citizens United. 24
Of course, as with virtually any such bill on which the Brennan Center has provided
feedback, S. 1500 may require some revisions to better achieve the commendable objectives that
the bill seeks to address. We would be pleased to share our expertise if helpful.
III. New Jersey can be a leader in democracy reform
We are in a significant moment for democracy reform. On the national stage, the new
House majority has introduced as its top priority H.R. 1, the For the People Act. In addition to
strengthening disclosure in federal elections, H.R. 1 also proposes public financing of
congressional campaigns and important voting reforms. Political gridlock in Washington may
mean, however, that state governments have a better chance to see such reforms across the finish
line. Here in New Jersey, Governor Murphy already has voiced support for a package of voting
rights bills that would build on its success of enacting automatic voter registration in 2018. 25
Just as it has the potential to become a leader in voting rights this session, New Jersey
also has a critical opportunity to restore citizens’ faith in the system by taking bold steps in
campaign finance reform. Encouraging increased transparency through disclosure is an
important first step, but New Jersey can do more. One option the Legislature should consider is

21
Id. § 1(v). New Jersey’s statutes do not currently contain a definition of “independent expenditure.” Its regulations
do, defining an “independent expenditure” as an expenditure made by certain entities including political committees,
or an expenditure of over $1,600 by a person from his or her own funds, without the cooperation or prior consent of
certain individuals or entities, to support or defeat a candidate or public question. See N.J.A.C. § 19:25-12.7.
22
S. 1500 § 1(u).
23
McConnell v. Federal Election Comm’n, 540 U.S. 93, 196 (2003).
24
See Citizens United v. FEC, 558 U.S. 310, 366-67 (2010); see also, e.g., Doe v. Reed, 561 U.S. 186, 199 (2010)
(“Public disclosure also promotes transparency and accountability in the electoral process to an extent other
measures cannot.”).
25
See Nick Corasaniti, New Jersey’s Governor Wants to Give You Fewer Reasons Not to Vote, N.Y. TIMES (Jan. 8,
2019), https://www.nytimes.com/2019/01/08/nyregion/voting-rights-nj-murphy.html.

4
to implement and enforce vigorous anti-coordination rules, to ensure that candidates do not
evade contribution limits by coordinating with spenders that are independent in name only.
To empower citizens in the face of big money even further, we urge the Legislature to
also focus on the affirmative solution of small donor public financing, even beyond the existing
gubernatorial public financing program. 26 This reform, which has a long and successful history
in New York City elections, has recently been adopted in jurisdictions including Washington,
D.C., Prince George’s, Montgomery, and Howard Counties in Maryland, and Suffolk County,
New York. And, across the river in New York State, many legislative leaders have backed the
reform, with great potential for it to be enacted this year. These reforms have the potential to
make New Jersey a leader among states striving to strengthen democracy.
***
We applaud the Legislature for taking up S. 1500 and urge you to continue the effort to
strengthen democracy in New Jersey. The Brennan Center endorses the bill and urges the New
Jersey Legislature to pass it promptly.

26
N.J.A.C. § 19:44A-33.