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Darkness or Disclosure?

Secret spending in our elections is a toxic problem. But last week, strong steps in the right direction were taken to fix it.

  • Elizabeth Kennedy
Published: April 28, 2011

Crossposted at the Huffington Post.

Secret spending in our elections is a toxic problem. But last week, strong steps in the right direction were taken to fix it. The Obama administration proposed expanding disclosure requirements for government contractors who spend money on elections. In addition, Rep. Chris Van Hollen, (D-MD), sued to get the Federal Elections Commission (FEC) to require shadowy outside groups to disclose the real source of their money spent in elections.

Historically, the idea that sunlight is the best disinfectant in a democracy has been accepted as a non-partisan truth. Unprecedented levels of money are expected to be spent to influence the 2012 elections, and reformers are racing to implement measures so this unrestricted spending is above board. Now, opponents of rational reform are preparing the ground for their next campaign: the fight to keep political spending in the dark.

In the 2010 elections, more than one-third of all independent spending was supported by anonymous donations. This was the result of a string of recent court decisions striking down campaign finance laws, including Citizens United, which allowed corporations to spend money directly from their treasuries to influence candidate elections.

But Citizens United also firmly rejected the attack on disclosure requirements heard from reform opponents today. A nearly unanimous Supreme Court held that voters have an interest in receiving information about the sources of election-related spending, and that this information enables citizens to make informed electoral choices.

To discredit disclosure, reform opponents must challenge the core American principle that open government and transparent politics best serve our democracy. The latest salvos in this campaign came in recent columns claiming disclosure chills speech and protects incumbents, and is therefore both unconstitutional and bad public policy. Their arguments are unconvincing, and should be thoroughly rejected.

One former candidate complained that potential donors were slow to give money because they had “been working with the incumbent on legislation that will benefit their company.” It is unfortunate that some may feel they face retribution from their representative if they provide financial support to his opponent. But such a fear must be kept in proper perspective: Many opportunities to create enemies exist in our political process, for example by joining a challenger’s campaign. Political grudges cannot be a justification to plunge our elections further into darkness. As Justice Scalia wrote in Doe v. Reed, “Requiring people to stand up for their political acts fosters civic courage, without which democracy is doomed.”

In fact, this admission only underscores the importance of disclosure of political spending—voters need to know whether a funder is trying to buy special treatment through campaign spending. The voters’ ability to hold their representatives accountable for political favoritism simply outweighs the need to conceal political favors.

Opponents of rational reforms express concern for the purported plight of those spending money in politics, but none for the voter’s right to know who is paying for campaigns meant to influence their votes and to curry favor with their representatives. A functioning democracy needs a transparent political process. This interest is not served by replacing disclosure with mere reporting to overburdened agencies, as proponents of secret spending have suggested. For example, many of the current organizations using dark money to influence our elections are required to disclose their donors to the IRS, but that information is not accessible to the voting public. Requiring that campaign spending be done in the open prevents the corruption endemic to political secrecy, and allows the public and the press to ensure that other campaign finance laws are being properly enforced.

Citizens United confirmed that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” It also announced that “a campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.” Unfortunately, that system does not exist today either. Organizations that spend money in politics without coordinating with a candidate can spend unlimited sums, and are able to hide the real source of those funds easily.

But progress is being made. Lower courts have followed the Supreme Court’s lead in upholding disclosure requirements, states are adopting stronger laws to ensure transparency, and there is movement at the SEC, FEC, and FCC to support efforts to unmask dark political spending.

Most notably, to ensure that the government spends money transparently in the interests of taxpayers, the Obama administration’s draft executive order expands disclosure requirements for companies seeking to do business with the government. The proposed order covers currently-veiled donations to organizations that spend money to influence elections, meaning that voters would be informed if a group named Americans for Clean Coasts was actually brought to us by TransOcean. This common sense reform is necessary so voters can know the true identity of actors advancing agendas.

Establishing rules requiring disclosure of money in politics should not be a partisan issue. Attempts to depict protections vital to our democracy as constraining the exercise of free speech or the tool of an oppressive government must be rejected. Voters are the central actors in our democracy, and they have a right to know the real sources of the money spent in elections so they can to judge those messages appropriately. Leaving voters in a vacuum precludes the informed decision making that is the beating heart of a healthy democracy. Secret spending has no place in our electoral campaigns.