In a 1998 editorial that was otherwise skeptical of campaign finance reform, The Wall Street Journal wrote, “If there’s one thing all the players agree on it’s the need for better disclosure of contributions and a crackdown on violators.” And who, indeed, could object to the principle—more necessary than ever after the Supreme Court’s ruling in Citizens United paved the way for corporations to get more involved in funding elections—that voters should know who is paying for political ads?
Well, it turns out a lot of people object—including The Wall Street Journal’s editorial writers circa 2010. This month, the Journal declared that Democrats are pushing disclosure requirements in order to transform “corporate donors into political piñatas, embarrass them publicly, hurt their business—and ultimately convince them that the price of donating to nonliberal groups is too high.” It isn’t just the Journal that now takes a different tone on the issue. In June 2000, John McCain endorsed “meaningful, balanced disclosure legislation” that would address “the most egregious examples of those seeking to avoid the public’s scrutiny.” This summer, he joined the rest of his party in voting to block a Democratic bill that would have barred most corporations from funding elections anonymously.
Candidates, of course, still have to disclose where their money comes from, and it is still illegal for corporations to donate directly to campaigns. The problem is that certain advocacy groups—which can run ads backing or opposing candidates, and which businesses or any other organizations can fund—do not have to disclose the sources of their money. And so we have no idea which groups are being funded by corporations, or how widespread the phenomenon is.
The notion that this situation is unacceptable—that corporations and unions spending money on electoral politics should be required to disclose their activities so that voters can know the source of any given political ad—seems utterly intuitive. If we must accept that corporations have a right to get even more involved in elections than they were before Citizens United, is it really so unreasonable to demand that they do so openly? The argument for disclosure was probably best expressed by, of all people, Antonin Scalia. Scalia may have voted in Citizens United to strike down limits on corporate giving, but even he appreciates the role that transparency ought to play in elections. “I do not look forward,” he has written, “to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.” The public, not surprisingly, agrees with this basic principle: According to a recent poll, 84 percent of voters believe they have a right to know who is paying for ads supporting candidates.
Democrats’ bid to remedy this situation, to be sure, is flawed. Their bill, known as the Disclose Act, would exempt some organizations—which are large enough, old enough, and don’t receive more than 15 percent of their funding via corporations or unions—from the requirement that they reveal their donors. This would protect the National Rifle Association, and likely other powerful groups, such as the Sierra Club, from having to play by the same rules as newer, smaller groups. Republicans have also raised other concerns worth considering. But the GOP’s approach has hardly been constructive: It filibustered a vote to allow debate on the proposed legislation, denying both parties an opportunity to modify and improve it. And it has offered no serious alternatives.
The conservative case against disclosure seems to rest on a bizarre interpretation of the First Amendment, under which we have both freedom of speech and freedom from the consequences of that speech. Conservatives are usually fans of personal responsibility. In this case, though, they apparently believe that corporations should not have to deal with the prospect of consumers taking their business elsewhere if they disagree with a company’s politics.
As a result, we now find ourselves in a political season where groups with names like the 60 Plus Association or Americans for Prosperity fill up the airwaves—and we have no idea where they got their money. As Slate’s David Weigel notes, 60 Plus has spent around $6 million buying deeply misleading ads accusing various Democrats of voting to slash Medicare—a substantial chunk of change for an organization that had only raised about $3.7 million from July 2007 to July 2009, when it reported a net worth of around negative $700,000. Where did all the new money come from? We don’t know, and 60 Plus isn’t telling. It doesn’t have to.