The U.S. Chamber of Commerce plans to spend $100 million to influence this year’s elections, and it will do anything to make sure no one knows where it gets its money from. In March, a federal judge issued a decision concerning a type of political ad that the Chamber has used heavily in its attempts to influence elections, called “electioneering communications.” The decision requires that any group (or individual) that runs electioneering communications must disclose its donors.
Advocates of transparency in elections praised the ruling, hoping it would increase the disclosures that allow voters to evaluate the messages they are being bombarded with this election. But the Chamber is defiant. It has announced that it will switch from using electioneering communications to another type of ad, called “independent expenditures,” which still allow spenders to avoid disclosing donors.
The Chamber’s move proves that our campaign finance system is so broken that the only law really governing is the law of unintended consequences. That’s because electioneering communications must stop short of expressly supporting or opposing a candidate for office — that is, they don’t say “vote for” or “defeat.” Independent expenditures, on the other hand, do expressly call on voters to vote for or against the candidate targeted. So in order to keep its donors secret, the Chamber is going to switch to ads that are more overtly political than those it has used in the past. That’s right — being more explicit in trying to influence elections allows the Chamber to disclose less about the sources of its spending.
Citizens United and other court decisions have reasoned that spending by outside groups shouldn’t be limited because courts assume that independent spending can’t have a corrupting influence. The campaign finance system has been rocked by the explosion of outside spending that has resulted. Super PACs have spent record amounts in this election. Some Senate candidates are being outspent by super PACs by a margin of three to one. And the undeniable cooperation of super PACs and the candidates they support exposes deep problems with the assumption that independent spending can’t corrupt.
Citizens United also based the decision to allow this explosion in spending on the assumption that there would be full disclosure of who was spending, and that this transparency would lead to accountability. Unfortunately, the transparency that Citizens United assumed would exist just doesn’t.
The lack of effective disclosure for independent expenditures has created a gaping loophole in our campaign finance law — a loophole so big that the Chamber and other groups are going to drive trucks full of money through it this year. A bill currently before Congress, the DISCLOSE Act of 2012, would greatly narrow this loophole and bring much-needed transparency to our campaign finance system. The legislation can end the haven of secrecy that independent expenditures offer to the sources of huge political spending — and if Congress acts, it can repeal some small part of the law of unintended consequences.