Senate Misses Chance To Bring Sunlight to Elections

With more than three months to go before Election Day, spending in the 2012 election is already shattering historic records. Much of the media interest in campaign cash focuses on whether Romney or Obama has more money in the bank, but the real story of the 2012 election is the tsunami of outside spending.

As of July 12, outside groups reported spending $167 million — more than double the amount such groups reported at the same point in the last presidential election, and more than four times the amount in 2010. But these figures dramatically under-state how much is actually being spent. Millions more dollars worth of political ads have aired that aren’t reported under the loophole-riddled federal disclosure rules. According to Kantar Media’s Campaign Media Analysis Group, two-thirds of the political advertising bought by the biggest outside spenders so far in the 2012 election cycle — close to $100 million worth — has come from nonprofit groups that don’t disclose their donors.

When voters don’t know who is spending millions of dollars to influence their votes, they lack the knowledge necessary to make informed decisions at the ballot box — and democracy suffers.

Congress has now missed two opportunities to shed disinfecting sunlight on the secret money swamping our elections, voting yesterday and today against the DISCLOSE Act of 2012, sponsored by Sen. Sheldon Whitehouse (D-RI). The bill would rectify glaring deficiencies in federal law by requiring disclosure of contributors who give more than $10,000 to outside groups that use the money for electioneering.

Unfortunately, Senator Mitch McConnell launched a no-holds-barred assault on DISCLOSE, and Senate Republicans voted as a bloc against the bill.

McConnell’s opposition to transparent elections makes him, in the words of the American Enterprise Institute’s Norm Ornstein, the “Hypocrite in Chief.” For decades, as McConnell resisted more stringent regulation of money in politics, he trumpeted disclosure as the ideal solution. In 2000, he told Meet the Press that “Republicans are in favor of disclosure . . . . We need to have real disclosure. And so what we ought to do is broaden the disclosure . . . . Why would a little disclosure be better than a lot of disclosure?”

McConnell hasn’t adequately explained the new answer to his old question — though a cynic might note that the secret political money this year dramatically favors the Republican Party.

Hypocrisy aside, McConnell’s attacks on DISCLOSE have involved a particularly high degree of chutzpah. First, he’s suggested that the bill is a lawless end-run to get around the Supreme Court’s game-changing decision in Citizens United. That couldn’t be further from the truth: Citizens United actually endorsed robust disclosure — by an 8–1 vote. “The First Amendment protects political speech,” the Court wrote, “and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.”

Arguing that Citizens United rejected disclosure is about as credible as saying the case outlawed corporate spending in elections.

McConnell’s second attack on DISCLOSE is, if anything, even more disingenuous. Ignoring the Supreme Court’s unambiguous embrace of transparency, McConnell has argued that DISCLOSE is unconstitutional under a case decided at the height of the civil rights era, NAACP v. Alabama.

This case emerged when the state of Alabama demanded the group’s membership list as part of an attempt to shut the NAACP down. Producing the list would have subjected its members to severe discrimination at the hands of the government — not to mention violence and even death. The Supreme Court recognized that compelling disclosure under those circumstances would mean the end of the NAACP in Alabama, permanently silencing its political speech. The Court reasoned that an exemption from disclosure was needed for the NAACP as a “shield from the tyranny of the majority,” so that its voice would not be permanently excluded from the marketplace of ideas.

In contrast to the civil-rights era NAACP, those resisting disclosure today, like the U.S. Chamber of Commerce — which has vowed to spend $100 million on political ads this year — are well within the political mainstream. Groups like the Chamber — and the mystery donors giving up to $10 million to the political non-profits flooding the airwaves with attack ads — could not be more different from the dissident, 1950-era NAACP. There is no risk that the government could entirely exclude their points of view from political debate if their million-dollar donors were disclosed — as would have been the case if the NAACP’s members were revealed. Comparing the NAACP’s dissident members to the moneyed interests trying to buy the 2012 election is inapt — if not offensive.

DISCLOSE presented Senators with a stark choice: do they favor transparent and accountable elections, or a secret-money auction of government to the highest bidder. More than a dozen Republican Senators supported disclosure in the past but joined McConnell’s filibuster yesterday and today. The right choice for democracy was clear. Too bad they didn’t make it.