Disclosure Games

May 24, 2013
posted by Bob Bauer

A champion of campaign finance de-regulation, Senator Mitch McConnell has set his sights on discrediting one facet of the reform program—disclosure—that the Republican Party long proclaimed it could live with. He suggests a change of heart brought about by the misdeeds of political adversaries, but others have noted how the Republican turn-about on disclosure coincided with the Supreme Court’s decision in Citizens United. So it is worth considering again whether the case the Senator is making is an example of anti-reform politics, significant more as a tactical exercise than a serious statement of constitutional principle or public policy.

As evidence that this is a tactical maneuver, there is, first, the distance that McConnell is putting between himself and the conservative Court majority that has defended the First Amendment’s compatibility with disclosure. In Citizens United, the Court sustained disclosure requirements in summary terms, even as they delivered on the question of corporate spending limits what McConnell would consider a victory for free speech. The Court carried this same partiality toward disclosure into a case, Doe v. Reed, in which they upheld public disclosure of the names of those who signed a petition for a referendum on a Washington State law expanding rights for same-sex domestic partnerships. 131 S. Ct. 2811 (2010). Citing the freshly decided Citizens United, among other precedents, the Justices found that disclosure “promotes transparency and accountability in the electoral process to an extent other measures cannot.” Id. at 2820. If Senator McConnell is on the side of the Constitution–a position he has asserted as a law-maker and a litigant– then on the other side are found the jurists whose First Amendment sensibilities he supposedly shares.

Then there is the move by which the Senator suggests the political misuse of disclosure requirements , a theme taken up today by a like-minded scribe at the Wall Street Journal. They both see the law as a crude tool used by Democrats and progressives to browbeat and harass their political opponents.

It is enough to say for purposes here that the charge he makes, and that the like-minded scribe repeats, is smoking with rhetoric and flights of fancy, and it depends for its force on a a failure of the audience’s long –term memory. If actions in the name of enforcing the law are simply a means of intimidating and harassing political competitors, what should one make of the legal actions filed in 2004 by the Bush-Cheney Presidential campaign against the organizers and the donors of “527s” critical of George W. Bush and the war in Iraq? Or of the Republican National Committee’s participation in filing complaints against these groups which it denounced as “ an unprecedented criminal enterprise” seeking to evade the campaign finance laws?  RNC Opens Assault on Anti-Bush Groups, CNN. Com (May 6, 2004), http://www.cnn.com/2004/ALLPOLITICS/03/31/gop.complaint.  Or of the threats by the then-Chair of the Republican-controlled House Administration Committee to subpoena these groups to account for their activities to a Congressional investigating committee? Or, a few years before,of  the Thompson Committee investigation of President Clinton’s re-election campaign financing?

So something to be taken more seriously has to lie behind this hard charge against disclosure, maybe more even than the short-term political calculation. The state of the national debate about reform could well be part of the explanation. As a result of a variety of developments, the 1970’s reforms are badly frayed, and the Court may pull them further apart as it continues to review challenges, such as the one pending to the two-year aggregate limit on individual contributions. The question now, depending on the questioner, is how to restore the reforms, improve upon them with fresh approaches, or dismantle them altogether. McConnell’s argument, if accepted, is that political reform, in any version the Government may produce, cannot be trusted, because it is sure to bear the imprint of vicious partisan self-interestedness.

For McConnell’s purposes, this case is very effectively built around disclosure, which was in years past hailed by the Republican Party as the least objectionable of reforms. If even disclosure is now dangerous, what is left to trust in any political reform package the Government might enact?  Senator McConnell’s answer is—nothing.

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