DISCLOSE Act Obituaries Are Premature (The Hill)

Reports of the DISCLOSE Act’s death are greatly exaggerated.  Certainly, the current version is unlikely to recover from again falling one vote short of the 60 needed to obtain cloture.  But the upcoming election is bound to breathe new life into the legislative effort to provide the American people with information about the flood of money -- much of it completely anonymous -- that is pouring into key races.  The flood comes courtesy of the Supreme Court’s shocking decision earlier this year in the Citizens United v. FEC.

Congressional leaders should bring a slimmed down version of DISCLOSE during the lame duck session – a version focused on the core disclosure provisions. Those provisions will ensure that the public knows who is funding these shadow organizations that in some instances seem to be operating as shadow political party committees – albeit without contribution or disclosure limits.  In many instances seasoned political operatives - with years of experience with the Republican and Democratic party committees or as trusted advisors to past Presidents - are organizing this money and channeling it to the races where it can have the most impact. 

Without new legislation, anonymous funders will continue to take advantage of gaps in current laws that were never intended to cover the funds allowed by the Citizens United decision.  The Tea Party phenomenon notwithstanding, some well-known, traditional powers are using these gaps to enhance their already formidable political power.  Not surprisingly, the U.S. Chamber of Commerce, the bastion of the Republican Establishment, is leading the way. 

The Chamber is especially attractive because it offers businesses an alternative to getting beat up in public for political expenditures to elect controversial politicians.  That’s what happened to Target recently when it was learned the company gave money to support a right-wing candidate in Minnesota.  That public relations nightmare for Target erupted over $150,000.  The Chamber meanwhile has committed to laundering $75 million dollars in political expenditures for its members before Election Day in an effort to elect candidates favorable to big business. 

The Chamber is offering massive corporations the chance to have their cake and eat it too.  Using legal loopholes, they are providing businesses a way to give money to business-friendly candidates and causes without any public exposure whatsoever. 

 Here’s how it currently works, as described in The Washington Monthly – including a refreshingly frank boast by Chamber President Tom Donahue:

            “[A] large part of what the Chamber sells is political cover. For multibillion-dollar insurers, drug makers, and medical device manufacturers who are too smart and image conscious to make public attacks of their own, the Chamber of Commerce is a friend who will do the dirty work. “I want to give them all the deniability they need,” says Donohue. That deniability is evidently worth a lot. According to a January article in the National Journal, six insurers alone—Aetna, Cigna, Humana, Kaiser Foundation Health Plans, UnitedHealth Group, and Wellpoint—pumped up to $20 million into the Chamber last year.”

The Chamber however is hardly alone. Other groups with patriotic-sounding names and tax designations to avoid disclosure have sprung up under the leadership of longtime political party operatives.  Labor unions are struggling to compete with the treasury funds of big business, but are using their own significant but more limited resources.  Unions have also been perfectly willing to hide their involvement with independent expenditures groups when they thought it to their advantage. 

Who knows if they are keeping up, since current laws weren’t structured to deal with this new lay of the land?

The latest one-vote loss to break a Republican filibuster of the DISCLOSE Act need not be the end of this effort to provide the transparency the Supreme Court itself supported in its Citizens United decision.  The provisions to require disclosure of corporate and union treasury funds spent to affect federal elections are critically important and go to the heart of our democratic process.  Senators should face a vote in the lame duck on a revised version which focuses solely on disclosure and drops provisions which have been mischaracterized and exploited by the bill’s opponents, such as the language to put new restrictions on government contractors.  It will be that much harder for politicians to vote against a bill that asks for nothing more than the identities of those funneling big money to elect or unseat Members of Congress.   The endless attack ads of election season will still be fresh in the minds of Americans when their elected representatives will be asked to vote on whether those paying to run the ads should have to own up to them.  It seems a simple question and it is a roll call vote that voters will remember.

Meredith McGehee is the policy director of the Campaign Legal Center and has advocated for campaign finance reforms for more than twenty years. She also heads McGehee Strategies, a public interest consulting business.

This piece ran in The Hill's Congress Blog on October 1, 2010. To read the piece at The Hill, click here.