First, a confession: Though a longtime member of the Church of Campaign Finance Reform, I have from time to time been tempted by the sect of Unlimited Donations, Unlimited Disclosure.
Republicans always dangled this apple in the most alluring way. Political money will find a path, they would insist. Give up! Give in! We will post every donation on the Web, instantly! We will give you transparency! Sunshine! Accountability!
What could be more democratic?
I never strayed, though, and now I thank the gods of McCain-Feingold I did not, because the temptation turns out to have been nothing but a trick. The Republicans, apparently, never meant it. Now that they have Unlimited Donations, or something pretty close, they don’t want Unlimited Disclosure after all.
They want unlimited contributions, in secret.
“Republicans are in favor of disclosure,” Sen. Mitch McConnell, R-Ky., said in 2000 on NBC’s “Meet the Press,” making clear he was including issue advocacy — campaign ads with a thin veil of policy — as well as candidate spending. “Why would a little disclosure be better than a lot of disclosure?”
“I think what we ought to do is we ought to have full disclosure, full disclosure of all of the money that we raise and how it is spent,” Rep. John Boehner, R-Ohio, now House speaker, said on the same show in 2007. “And I think that sunlight is the best disinfectant.”
“I don’t like it when a large source of money is out there funding ads and is unaccountable,” Sen. Jeff Sessions, R-Ala., said in 2010. “To the extent we can, I tend to favor disclosure.”
Yet now, with more secret money than ever slopping into the system, not a single Republican has signed on to bills that would provide the disinfectant Mr. Boehner claimed to favor.
What’s changed?
Sadly, only one thing, and it’s not the merits of the argument. The playing field has tilted toward Republicans, and they’re in no hurry to tilt it back. A combination of Supreme Court jurisprudence and lax enforcement from the Federal Election Commission and the Internal Revenue Service has allowed groups like Karl Rove’s Crossroads GPS (and Bill Burton’s pro-Obama Priorities USA) to take million-dollar donations, or 10-million-dollar donations, use them in political ads and never disclose the donors.
It allows the Chamber of Commerce to run ads opposing a candidate for supporting Obamacare, say, and never disclose that the funding for the ad comes entirely (we’re speaking hypothetically now) from a single health-insurance company. Can that be in the public interest?
The Supreme Court doesn’t seem to think so. The Court was divided in its 2010 Citizens United decision, which opened the way for more corporate and union spending, but the justices were clear (8-to-1) that they weren’t banning disclosure. On the contrary: “The First Amendment protects political speech,” they wrote, “and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Now Rep. Chris Van Hollen, D-Md., and Sen. Sheldon Whitehouse, D-R.I., have introduced legislation that would — without limiting a single act of political speech — promote disclosure, sunlight and disinfectant. Not a single Republican has signed on.
Sen. Mitch (“Republicans are in favor of disclosure”) McConnell offered several explanations and a whole school of red herrings Friday in a speech to the American Enterprise Institute, but the essence was this: Now the First Amendment guarantees not only unlimited donations but unlimited secret donations, too. Otherwise, he argued, freedom of association is threatened.
But the DISCLOSE Act doesn’t threaten freedom of association. It would allow the NAACP, if it wanted to engage in election activities, to set up a separate bank account to fund them. The names of anyone giving more than $10,000 to that account would be disclosed; anyone giving to support the rest of the organization’s mission would be, as always, protected.
McConnell complained the bill wouldn’t affect unions. But the bill doesn’t discriminate; it’s just that unions don’t get their money in secret installments of $100,000 or $1 million.
And McConnell fretted that disclosure of “independent” expenditures would subject conservative donors to harassment. Yet he still claims to support disclosure of donations to campaigns, which presumably opens the same risks of being called mean names by liberals. Maybe even McConnell isn’t ready to break entirely from Justice Antonin Scalia’s argument in Doe v. Reed in 2010.
“There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance,” Scalia wrote. “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Democracy is endangered, too, if politicians cannot hold to principle equally when it’s politically beneficial and when it’s not.
Disclosure may soon come up for a vote in the Senate. Will any Republicans have the civic courage to remember where they stood a few years back?
Hiatt is The Washington Post’s editorial page editor.
