Not Buying Senator McConnell's Position on Disclosure
Disclosure ensures that political speakers must stand by their claims and engage in true debate with their opponents.
In an opening salvo against the DISCLOSE Act of 2012, which the Senate will begin debating in the coming weeks, Senator Mitch McConnell (R-Ky.) wrote a Politico op-ed saying President Obama and congressional Democrats are attempting to "muzzle political speech" by pushing to bring transparency to the third-party spending unleashed by Citizens United.
McConnell has it backwards. He characterizes the DISCLOSE Act as "an attempt to get around the court's decision in Citizens United," but in fact, the bill is an attempt to realize the vision of disclosure that Citizens United embraced — by an 8-1 vote. In his majority opinion, Justice Anthony Kennedy praised disclosure, saying online reporting of political spending provided "shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters" (emphasis mine). He further noted, "A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today."
Unfortunately, it still doesn't exist: "'Let there be light,' and then there was light," is not how this nation operates, whatever the Supreme Court may think. Indeed, the sort of disclosure described by Justice Kennedy does not even exist for direct contributions to candidates. U.S. Senate candidates need only file paper campaign finance reports, an anachronism that can delay disclosure of campaign finance data by months. Meanwhile, some outside groups spending tens of millions of dollars to influence the 2012 election reveal no information about their donors.
In an age of unlimited political spending, the DISCLOSE Act would provide the sort safeguards that eight of nine members of the Supreme Court believe are essential for accountable and functional democracy.
McConnell, of course, is entitled to disagree with the Supreme Court and others, who believe that greater disclosure is needed in the aftermath of Citizens United. What he can't do is depict supporters of disclosure in such Orwellian terms without explaining his own seismic shift on the issue. In 2000, McConnell co-sponsored, with 22 Republican colleagues, the Tax-Exempt Political Disclosure Act, a measure that would have required disclosure of contributions of $200 or more to the very same types organizations targeted by DISCLOSE. Declaring his support for the bill, McConnell argued that tax-exempt groups should not be allowed to "continue to spend millions of dollars on political activity with no meaningful disclosure."
One need not search too far or wide for an explanation for McConnell's conversion on disclosure. When McConnell supported increased disclosure by issue advocacy organizations and tax-exempt labor and trade organizations, such groups spent minimal amounts on advertising. In the 1998 midterm election, third-party groups spent $15 million on political advertising. Wealthy individuals, corporations and unions, by and large, directed their resources to political parties, to which they made unlimited contributions to the tune of $191 million.
In 2002, McCain-Feingold outlawed these soft money contributions, and the role of outside groups in elections has increased ever since (with four months remaining in the 2012 campaign, outside groups have already spent more than $147 million). McConnell, the foremost congressional opponent of McCain-Feingold, became the lead plaintiff in the case that unsuccessfully challenged its constitutionality after it became law in 2002. The great irony is that soft money contributions, like all donations to parties, were subject to the very sort of disclosure that McConnell now opposes.
McConnell's position on campaign finance reform is consistent in only one way — his desire to minimize the restrictions on and maximize anonymity for large contributions from wealthy and powerful interests. He was perfectly willing to support disclosure for outside organizations, so long as they were not meaningfully involved in the electoral process. But now that they are, he views disclosure as a tool used by left-wing groups to "grind their critics into submission."
As Justice Antonin Scalia recognized in Doe v. Reed (2009), "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed." It is too easy for anonymous speakers to tear down their political opponents using false or misleading information. Disclosure ensures that political speakers must stand by their claims and engage in true debate with their opponents. It also allows the public to hold entities to account when they irresponsibly distort the facts for political gain. McConnell should disavow his newfound antipathy toward disclosure and help restore accountability to our elections.