Campaign finance opponents are back to performing their favorite move: the “Disclosure Two-Step.” While breathtaking in its audacity, the dance is remarkably simple. First, while challenging a substantive campaign finance restriction, you assure your audience that you strongly support disclosure and argue that political transparency will ameliorate any harm caused by the elimination of the targeted restriction. Second, once the substantive restriction has been eliminated – say, by an activist conservative Supreme Court – you pivot and assert that disclosure is a threat to free speech and a trigger for the unconscionable harassment of political speakers.
The duo of FEC v. Wisconsin Right to Life (WRTL) (2007) and Citizens United v. FEC (2010) is a good example of this one-two punch. WRTL was an as-applied challenge to a provision of the McCain-Feingold Act that prohibited corporations and unions from spending on so-called “electioneering communications,” or sham issue ads. The lawyers for WRTL then brought Citizens United, a case that began in the district court principally as an as-applied challenge to the related electioneering communications disclosure requirements.
When they challenged the electioneering communications spending restriction inWRTL, however, the plaintiff’s lawyers claimed that they were not seeking to undermine any federal disclosure measures. To the contrary, counsel to WRTL stressed to the Supreme Court that even if the Court struck down the corporate and union funding restriction, the disclosure laws would guard against any distortion of the electoral arena caused by corporate and union spending, stating:
Because WRTL does not challenge the disclaimer and disclosure requirements, there will be no ads done under misleading names. There will continue to be full disclosure of all electioneering communications, both as to disclaimers and public reports. The whole system will be transparent. With all this information, it will then be up to the people to decide how to respond to the call for grassroots lobbying on a particular government issue. And to the extent that there is a scintilla of perceived support or opposition to a candidate, . . . the people, with full disclosure as to the messenger, can make the ultimate judgment.[1]
After the Supreme Court struck down the electioneering communication spending provisions as applied to WRTL’s ads in 2007, however, the two-step began. The attorneys for WRTL next brought the Citizens United challenge, seeking, among other things, to scale back the same disclosure law they had previously claimed would protect the system if the substantive corporate and union spending restrictions were eliminated. Now that those pesky funding restrictions were out of the way, they asserted that “compelled disclosure as to core political speech imposes an inherent burden on First Amendment privacy rights.”
Of course parties in litigation – and their attorneys – are not bound by any rules of consistency. To the contrary, “arguing in the alternative,” even in the same case, is a commonplace technique. But here the about-face on disclosure is not simply a one-time litigation strategy, but rather the modus operandi of a widespread effort to change campaign finance law and policy. One does not have to look too hard, for example, to find legislators and other policymakers who have recently reversed their positions on disclosure. In the past, conservative voices ranging from Senate Minority Leader Mitch McConnell (R-KY) to The Wall Street Journal opposed substantive campaign finance restrictions on the basis that disclosure would be sufficient to prevent corruption. Now that many substantive restrictions have been invalidated by the courts, however, these erstwhile disclosure advocates have suddenly discovered the dangers of transparency. Or otherwise put, Senator McConnell circa 2000 stated: “We need to have real disclosure. . . .Why would a little disclosure be better than a lot of disclosure?”;[2] McConnell today states that the proposed DISCLOSE Act is “nothing less than an effort by the government itself to expose its critics to harassment and intimidation, either by government authorities or through third-party allies.”[3]
Placed in this broader context, the two-step thus seems less a defensible courtroom technique, and more an attempt to obtain public policy outcomes under false pretences. And the desired outcome is apparently not only to unleash unlimited expenditures by corporations, unions and deep-pocketed individuals, but to do so in such a way that no one can trace the sources of such expenditures or evaluate the underlying interests of the speakers.
Further, insofar as judges are striking down substantive campaign finance restrictions on the promise that disclosure will mitigate any ill effects of their decisions, a subsequent challenge to disclosure laws would seem to undermine the basis of their rulings. This point was recognized by the Montana state supreme court in American Tradition Partnership (ATP) v. Bullock, a challenge to the constitutionality of Montana’s state corporate expenditure ban in the wake of Citizens United. In a surprise move, the state supreme court upheld Montana’s expenditure ban, and the plaintiff ATP’s petition for certiorari is currently pending before the Supreme Court.
In the litigation, ATP has emphasized that even if the state corporate spending ban were to be invalidated, the state disclosure laws applicable to such spending would preserve the integrity of the election process. But so eager was ATP to eliminate all of Montana’s campaign finance laws that it was unable to summon the patience to perform the second part of the “two-step” at a later date. Instead of biding its time, it simultaneously filed a different lawsuit to challenge Montana’s state disclosure laws, a two-step so blatant that the state supreme court took notice, stating in its decision that:
[ATP] appears to be engaged in a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements. In addition to this case [regarding the corporate expenditure restriction], it is currently engaged in separate litigation in the same District Court involving the Montana laws on campaign spending disclosures.[4]
The court closed by noting the “irony” that ATP had attempted to assure the court in its corporate expenditure challenge that its “compliance with these same disclosure laws that it now seeks to invalidate should remedy any concerns regarding the potential corrupting influence of its unlimited corporate expenditures.” (One of the justices also noted that Center for Competitive Politics – a frequent critic of disclosure laws outside the courtroom – in its amicus curiae brief described disclosure mandates as among the “constitutional tools” available to states in the wake of Citizens United.)
The Supreme Court could rule upon ATP’s petition for certiorari as early as Monday. Many see the case as an opportunity for the Supreme Court to reconsider its decision in Citizens United. In particular, the Legal Center argued in its amici brief that Citizens United should be reassessed because the 5-4 majority incorrectly assumed that the existing disclosure laws would combat any corruption triggered by unrestricted corporate spending by providing “citizens with the information” to “see whether elected officials are ‘in the pocket’ of so-called moneyed interests.” As the recent deluge of anonymous outside spending in federal elections has made clear, the Supreme Court was far too optimistic about the reach of the federal disclosure laws. One can only hope that the U.S. Supreme Court will follow the lead of its Montana counterpart, and become a little savvier about how the promise of disclosure is being manipulated by those that seek a whole-scale deregulation of campaign finance. After all, the two-step is a pretty transparent assault on transparency.
[1] Brief for Appellee, FEC v. Wisconsin Right to Life, No. 06-969 (March 2006) at 49.
[2] McConnell appearance, Meet the Press (June 18, 2000).
McConnell speech, American Enterprise Institute (June 15, 2012) athttp://www.aei.org/events/2012/06/15/growing-threats-to-our-first-amendment-rights/.
[4] Western Tradition Partnership v. Attorney General, 271 P.3d 1, 4-5, 225-26 (Mont. 2011).