In January, when the Supreme Court decided in Citizens United v. Federal Election Commission to allow unlimited corporate spending on elections, Justice Anthony Kennedy justified the court’s decision in large part on the assumption that such activities would be fully disclosed. Today, the U.S. Senate will vote today on the aptly named DISCLOSE Act, which would ensure that the public receives the information that Kennedy promised.
“A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today,” Kennedy wrote in Citizens United, adding that Congress’s previous ban of corporate-funded electioneering communications was “premised on a system without adequate disclosure” such that “[t]he public may not have been fully informed about the sponsorship of so-called issue ads.” With disclosure, Kennedy wrote, the public could evaluate issue ads and determine “whether elected officials are in the pocket of so-called moneyed interests.”
Kennedy’s clear implication was that an adequate system of disclosure now exists and that the public would be informed of the sponsors of the corporate-funded ads that Citizens United allowed. But no such system is in place. Although language requiring disclosure of funders of electioneering messages was included in the 2002 McCain-Feingold bill – and was upheld in the Citizens United opinion – the Federal Election Commission already had gutted that clause more than two years earlier in response to an earlier Supreme Court retrenchment of campaign finance law.
As a result, the share of groups revealing the sponsorship of their electioneering communications plummeted from nearly 100 percent in the 2004 and 2006 election cycles to about 50 percent in 2008. Only 32 percent of groups running such ads during the primary season of the current election cycle revealed who paid for them, a recent analysis by Public Citizen found.
The public is being deluged with ads by entities that almost invariably invoke some form of “Americans” in their names, but rarely reveal anything about which Americans are behind them – or even if they are Americans.
American Crossroads, a Karl Rove group aiming to spend more than $50 million to influence this fall’s elections, initially registered under the section of the tax code designated for political entities. Under that status, known as Section 527, donors would have to be identified quarterly. Soon after its formation, the group created a spin-off under the section of the tax code reserved for social welfare groups, (501)(c)(4), which will allow it to keep its donors secret forever.
The Partnership for America’s Future – whose principals include Mary Cheney, daughter of the former vice president – registered as a 527, just as American Crossroads initially did. But it simply reports that it receives all of its money from the Alliance for America’s Future. The “Alliance” is registered as a 501(c)(4) – enabling it and the groups to which it funnels money to operate under the cloak of secrecy.
One group seems to think that the public has a right to know who is paying to build a place of worship but not who is paying to influence elections. The American Future Fund is running an ad attacking Rep. Bruce Braley (D-Iowa) for purportedly supporting the mosque to be built in southern Manhattan. The ad criticizes the cleric seeking to build the mosque for allegedly “raising millions overseas from secret donors.” But the American Future Fund is also raising millions from secret donors (it is not clear whether the donors are overseas).
These episodes were just from the primaries. With special interests beginning to pour hundreds of millions of dollars into this fall’s general elections, Americans can expect an ever rising flood of sinister ads underwritten by anonymous entities.
It is dubious that Kennedy’s no limits, full disclosure formulation will work. The most likely outcome is that nearly all candidates will feel the need to vie for special interest influence to avoid being drowned out, leaving the voters to choose between captives of moneyed interests.
But as long as there are no limits on corporate electioneering, the public deserves its part of the Supreme Court’s deal. So far, Senate Republicans have blocked the DISCLOSE Act from even coming up for a vote. Today, those senators need to honor the assumptions that underlay Kennedy’s opinion and allow a floor vote on this uncontroversial bill. There are ample votes to pass the measure once the filibuster is dislodged, and that will at least bring corporate spending in from the shadows.
Taylor Lincoln is the research director for Public Citizen’s Congress Watch division.