Obstruction to Election Spending Disclosure: Welcome to 2012 America

Today, Monday July 16th 2012, the U.S. Senate will vote on whether to end the filibuster of the DISCLOSE Act, and more likely than not, the effort to bring the popular bill to a final floor vote will fail. Yet the DISCLOSE Act is a bill so fundamentally logical and conspicuously necessary for the health of our democracy, it is mind boggling that even one U.S. Senator would dare to not support it - let alone label it so extreme that the Senate should not even be allowed to vote on it.

The bill is about transparency, and the American people’s right to know who’s funding the campaign ads that are flooding our airwaves and influencing our opinions.

Here’s a brief history on how we got here:

On January 21st, 2010, the Supreme Court issued its landmark ruling in Citizens United v. FEC, overturning key provisions of the McCain-Feingold Act, creating a new campaign finance system in which corporations and unions could use treasury funds to influence elections.

Three months later, the D.C. Court of appeals struck down federal law limiting contributions to entities engaged in independent expenditures in the case SpeechNOW v. FEC. To reach their decision, the lower court relied upon the rationale put forth in Citizens United, particularly that “independent expenditures … do not give rise to corruption or the appearance of corruption.” The Roberts Court declined to consider an appeal of the lower court’s ruling in SpeechNOW, and thus ushered in the era of the super PAC.

Yet anonymous spending was not supposed to be the result of these rulings.

In the opinion of Justice Kennedy, writing for eight of the nine justices on the Court, it was assumed that disclosure requirements were constitutionally permissible and would serve as a check in this new I.E. spending reality.

Kennedy wrote:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.

… citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.

… disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.


But that transparency has not been codified into law.  At present, there is no law or statute that requires entities that make independent expenditures to disclose to the general public the identities of those who gave money to the entity specifically for political ads and other spending.

Following Citizens United in 2010, Congress came close to mandating disclosure when the House passed the DISCLOSE act. The bill had strong majority support in the Senate, so the Republicans filibustered it. Unfortunately, the effort to end the filibuster failed in the Senate by one vote. It died on the Senate floor with a 59 to 39 split on a cloture motion, presciently extending what historian Robert Caro wrote about the Senate of the late 1950’s to the present day, that “For almost a century, [the Senate] had not merely embodied but had empowered, with an immense power, the forces of conservatism and reaction in America.”

Yet disclosure should not be a conservative issue or a liberal issue. This is a democratic issue, with the fundamentals of our democracy at stake. In 2012 America however, Republican political partisanship and hunger for power at all costs have taken precedent over the need for reform; and Republican Senate leadership is holding firm. Issues vital to the health of our democracy - whether they be voting rights or campaign finance rules - are now warped into partisan issues.

Senate Minority Leader Mitch McConnell and opponents of the DISCLOSE act are desperate to find ways to discredit it and justify their unjustifiable opposition.

Take for example, McConnell’s piece in the USA Today, "Disclose Act is un-American," where he writes:

The Supreme Court, in Citizens United v. the FEC, correctly ruled that Congress may not ban political speech based on the identity of the speaker. (sic)

The Disclose Act would make this and any future administration's ability to punish and intimidate its political enemies even easier. It is the Democrats' attempt to get around the court by compelling certain targeted groups to disclose the names of their donors, while excluding others, such as unions, from doing the same.

While Senator McConnell cries out "un-American" and "unions" to scare his base - like Senator McCarthy once cried out "communists" on the Senate floor - the facts are irrefutable. Under the bill’s provisions, unions are treated equally to for-profit corporations. Case closed.

Furthermore, supporting the DISCLOSE Act is not a political power grab; however to reject it is, since the majority of the undisclosed money is benefiting the Republican party. So it goes for the bill’s opponents. Take reality and turn it on its head.

McConnell then declares:

This bill calls for government-compelled disclosure of contributions to all grassroots groups, which is far more dangerous than its proponents admit.

The Supreme Court addressed this issue in 1958 in NAACP v. Alabama, ruling that forced disclosure of the NAACP's member lists by Alabama would discourage people from freely associating with a cause or group.

Once again, McConnell has to obfuscate the truth to hide the fact that he has no real argument.

The bill requires organizations (corporations, unions, super PACs, non-profits) to report within 24 hours of making an election expenditure of $10,000 or more. Donors that give $10,000 or more to the organization would be made public, unless they specify that their contributions to the organization cannot be used for election spending. The idea that every grassroots group will have to turn in their membership lists to the evil federal government is a scare tactic, and unsubstantiated.

The bill is designed to remove the added layer of anonymity ‘speakers’ are currently hiding behind by donating to nondescript (c)(4) and (c)(6) organizations that – unlike for-profit corporations, advocacy groups, and unions – do not operate in the public sphere, and whose purpose generally is unknown to the public.

One would imagine that halting this egregious process would be a quick fix. But one would also imagine the same for voting on judicial nominations, or extending the debt ceiling, or allowing Americans to cast a vote on Election Day. Unfortunately, that’s not how 2012 America functions.

The most unbelievable part of McConnell’s and Republican obstruction is that this DISCLOSE act is a watered-down version of its original. The 2010 provisions that would have required funders to “Stand By Their Ads” has been removed, as have the prohibition on electoral advocacy participation by corporations that received TARP funds. The bill will not be effective until 2013, so would not even affect this election cycle. But in the end, it’s definitely a step in the right direction and should be a no brainer for any elected official committed to the integrity of our elections.

Yet we are bound to hear the absurd cry of “union carve-out” tonight on the Senate floor when the bill is debated, and all the other diversionary arguments. The obstructionists need straw men, since without them, there could only be silence.

PFAW
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