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Pass the DISCLOSE Act Now

Liz Kennedy

Tonight, critical legislation that would shine a light on the dark money dominating our democracy was defeated on the Senate floor. To be clear, it received a majority of votes, but failed to overcome a filibuster from Senator McConnell. Even he was for disclosure before he was against it, saying in 1997 that "Public disclosure of campaign contributions and spending should be expedited so voters can judge for themselves what is appropriate."

The Senate considered simple, common-sense legislation that would require all groups that spend over $10,000 to report who provides their funding. The DISCLOSE Act, whose long title is “Democracy is Strengthened by Casting Light on Spending in Elections,” would apply evenly across the board to all groups that engage in political spending, whether Super PACs, nonprofits, corporations, labor organizations, or trade associations. Currently, many of these groups are not required publicly to identify the source of their funds. This goes against the principle that voters have a right to know who is trying to influence their vote.

We are seeing unprecedented amounts of outside money being spent on elections, and two-thirds of all the political ads from outside groups have come from groups that don’t disclose their donors. Unfortunately, the current system can amount to little more than legal money laundering. The Washington Post, editorializing in favor of the DISCLOSE Act, asks: “Who is writing checks for $10 million or $1 million at a single throw, and what do they want? We don’t know, and this shadowy bazaar undermines our political system.”

Even the much-maligned Citizens United decision relied on the premise – false, unfortunately – that the money flooding into elections would be disclosed:

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. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘‘in the pocket’ of so--‐ called moneyed interests.’ The First Amendment protects political speech; and 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.

The Supreme Court has repeatedly ruled that requiring that political spending be done in a transparent manner is constitutional. Voters can judge the credibility of a message by knowing the identity of the speaker. Transparency also means voters can hold their elected officials accountable for the company they keep, and how the decisions they make relates to the financial interests of their financial supporters.

Despite strong, consistent Supreme Court support for disclosure, opponents of transparency attempt to frame the issue as an assault on free speech. McConnell now claims that “as a result of this legislation, advocacy groups ranging from the NAACP to the Sierra Club to the Chamber of Commerce . . . would now be forced to subject their members to public intimidation and harassment.”

But criticizing behavior is not the same as ‘chilling’ speech, and holding people accountable for their actions is not the same as harassment – particularly when they choose to use the size of their wallet to dominate our democracy. A federal judge in California spoke to this issue in 2009 when he wrote

Plaintiffs’ . . . argument appears to be premised . . . on the concept that individuals should be free from even legal consequences of their speech. That is simply not the nature of their right. Just as contributors [] are free to speak in favor of the initiative, so are opponents free to express their disagreement through proper legal means.

Even conservative Justice Scalia firmly rejects this canard, writing in a decision upholding disclosure requirements that “

Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which campaigns anonymously [] and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

DISCLOSE will come up for a vote again on July 17. Simple rules requiring transparency in political spending may not be sufficient to restore the health of our democracy, but they are certainly necessary to see that the system isn’t entirely bought behind closed doors. There are a lot of people fighting hard for this common-sense legislation. In the spirit of the Home of the Brave may they keep up the fight, until enough people understand not only that our system of money in politics is failing their interests but that there are ways to make it demonstrably better. This is one of them. Anyone voting against it should be pressed by their constituents as to why.