A mailer attacking former Utah state Rep. Brad Daw (R) and circulated among the state’s lawmakers last election cycle started a battle between the legislature and Utah’s political consultants. The consultants now appear to have lost—at least round one. Two bills, HB 44 and HB 43, which require poll sponsorship disclosure and donor disclosure by 501(c)(4)s making at least $750 in political expenditures, are set to be signed by Utah Gov. Gary Herbert as early as this week. The legislation will chill free speech, consultants say, and could discourage potential candidates—their potential clients—from entering the field. But state Rep. Greg Hughes (R), the House majority whip who pushed for the bills, says the laws aren’t incumbent protection, despite his admission that they came about after a particularly nasty primary last year. "These bills were only thought of after candidates, and in this case an incumbent, was on the wrong side of this kind of practice,” he says. Daw, the incumbent in question, lost his 2012 primary to now Rep. Dana Layton. The first Republican to get Daw to a primary, Layton was aided by a PAC run by Jason Powers, an operative famous for leading the Club for Growth's campaign against ex-Sen. Bob Bennett in 2010. Powers' group claimed that Daw had supported "government health care" and compared his legislative record to that of President Obama in the aforementioned mailer, which shows both men wearing surgical garb. “[Powers] sent the Brad Daw hit piece to every lawmaker as a shot across the bow, as a ‘this is what you can expect from this group if you're on the wrong side of us,’” says Hughes. “It was pretty inflammatory, and to some degree it worked.” Daw couldn't draft legislation after he lost his primary, but Hughes gave him access to the drafting attorneys. "I did play a fairly significant part in terms of drafting those bills. “This is the reaction to some very unethical practices,” he says, “not only in my race but in others as well. There is one campaign manager [Powers] who is engaging with these practices, and hopefully he'll feel that the people of Utah don't appreciate that campaign tactic.” “If it was just my vendetta, it'd be one thing,” Daw went on. “But it had very few no votes all the way through." HB 44, which is considered an anti-push-poll measure by proponents, requires the disclosure of who paid for the poll to be made during a survey call. Consultants said that this disclosure taints their research and may dissuade potential candidates from running because it alerts the incumbent to his or her plans. "We urge the Governor to veto this bill in the interest of legitimate research," Whit Ayres, president of the AAPC, said in a recent statement. Daw notes that disclosure is only required if a specific candidate or ballot initiative is being tested in the call. Moreover, he says, a candidate must be registered to run for disclosure to be mandatory. "If somebody’s testing the waters, test all you want, and no disclosure required,” he says. Powers was frank about his view of the legislation. "HB 44 is incumbent protectionism at its worst," he says. "The politicians know exactly what they're doing here.” Meanwhile, HB 43 requires that a corporation, including not-for-profit corporations, disclose all donors and donation amounts when it makes a political issue expenditure of $750. Groups opposing HB 43 ranged from the ACLU, to the National Rifle Association to the Center for Competitive Politics (CCP), a conservative advocacy group. “It’s one of the worst written bills I’ve ever seen,” says David Keating, CCP’s president. “It’s so bad I can’t imagine a court upholding it.” Daw, who brushed aside a question about whether he’ll run again, says the purpose of HB 43 is simple. "If someone gets engaged in politics and spends money, people have a right to know who they are,” he says. Powers maintains that it will “dry up donations to groups who are exercising their free speech.” Consultant Brian Chapman, the managing director of Provo-based BCR Political, has tracked the legislation as it moved through the Legislature. He says Powers got what he was asking for. “He risked the backlash and got it,” says Chapman. “The lawmakers are trying their hardest to create transparency, but they’re not looking at how it affects campaigns. Most of these guys have never run in a primary.” Another bill lawmakers considered would have required consultants to register in a manner similar to state lobbyists. It never made it to a vote. Meanwhile, Chapman says good polling information in Utah will be harder to gather and HB 43 will likely result in more shell organizations being set up. But the business of campaigns will remain fundamentally unchanged, he says. “The only people they're going to hurt are the little guys.”
Political consultants are fighting the state legislature on two disclosure bills.