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Justice Scalia’s Sense of Entitlement

Even Justice Scalia endorsed disclosure in Citizens United, but the reality is we will never know the sources for millions of dollars spent in this year’s election.

July 20, 2012

In an interview on CNN this Wednesday, Supreme Court Justice Antonin Scalia defended the Court’s Citizens United decision. When asked if the Founding Fathers intended the Constitution to allow super PACs to spend unlimited amounts of money, Scalia responded, “Thomas Jefferson would have said the more speech the better.” A recent poll found plenty of people who disagree: 63 percent said corporations and unions should not be able to spend as much as they want in support of or in opposition to political candidates. Television viewers in swing states — who will be increasingly clobbered with political ads as the election nears — might also disagree.

But Scalia didn’t stop at attributing an appreciation of super PACs to Thomas Jefferson. He went on to make a critical point about political spending in a democracy. Rejecting the idea that expenditures should be limited, he said: “I think, as I think the framers thought, that the more speech the better. Now, you are entitled to know where the speech is coming from. You know, information as to who contributed what. That’s something else.”

Justice Scalia understands that democratic values require that the public know who is speaking in order to decide how much to trust the speech, and that means we need robust disclosure of the sources of political spending. Scalia has powerfully described this value before, writing in a concurring opinion in 2010: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Indeed, in Citizens United, the justices — by a vote of 8 to 1 — held that mandatory disclosure doesn’t violate the First Amendment.

But you wouldn’t know it listening to the opponents of the DISCLOSE Act, a bill that would have required disclosure of the source of donations for outside spending above a certain amount in political campaigns. Sen. Mitch McConnell (R-Ky.) furiously opposed the bill, saying on the Senate floor that Democrats’ “true intent” with the bill “is to encourage their allies and discourage their critics from exercising their First Amendment right to speak their minds.” McConnell’s interpretation of the First Amendment is in tension with the Supreme Court’s, but Senate Republicans nevertheless killed the DISCLOSE Act this week with a filibuster.

The death of DISCLOSE leaves voters in the dark about who is trying to sway their opinions, since current law does not provide for adequate disclosure. For example, in a Pennsylvania GOP Senate primary this year, more than half the outside spending came from a single super PAC that wasn’t required to report its donors until after the primary was over. When it did, it revealed that almost all its money came from donations from another super PAC, which in turn received all its funds from a nonprofit organization that shares the same address, a UPS mailbox. With no legal requirement for the nonprofit organization to disclose donors, there is no way for Pennsylvania voters to know the ultimate source of this spending.

An organization called the Congressional Leadership Fund has reserved $6 million in TV ad time targeted to help several Republican House candidates, but about half of the money will come from an affiliated nonprofit that doesn’t have to disclose its donors.

This week, the U.S. Chamber of Commerce began airing ads intended to help Republican candidates in four states. The Chamber has reported spending more than $1.1 million on the ads — money that ultimately comes from the Chamber’s member companies, but the Chamber doesn’t have to disclose its donors. So voters in those states don’t know the identities of the corporate interests that are trying to influence them.

Megadonor Foster Friess hasn’t enjoyed the attention he’s gotten for contributing millions to super PACs — first one supporting Rick Santorum and more recently one for Mitt Romney. “People looked at me as a villain,” he complained. In order to stop seeming like a villain, he’s going to start making his contributions in secret. He’ll continue giving enormous amounts of money to be spent on the election, but he’s going to give it to nonprofits that don’t have to disclose their donors. Sheldon Adelson, who along with his immediate family gave $20 million to Newt Gingrich’s super PAC, is considering the same strategy for his future support of Republican candidates.

Justice Scalia says that “you are entitled to know where the speech is coming from.” However “entitled” you may be, the reality is you will never know the sources of millions of the dollars spent in this year’s election.