The new DISCLOSE Act of 2012 introduced yesterday by Rep. Chris Van Hollen (D-MD) is a serious measure that merits bipartisan support. By stripping out provisions that in the last Congress gave cover to those who oppose transparency, Rep. Van Hollen has presented the 112th Congress with a strong measure that both Democrats and Republicans should support, regardless of the partisan messaging that accompanied its introduction.
It is worth noting that in the Citizens United decision, the Supreme Court upheld the constitutionality of disclosure. Justice Kennedy’s 8-1 majority opinion, spanning the philosophical wings of the Court, said on this point: “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Justice Kennedy’s majority opinion also made clear that it is generally constitutional to require disclosure of the sources of funding for spending in elections, whether or not that spending “expressly advocates” the election or defeat of a federal candidate. The 8-member majority rejected the notion that disclosure requirements should be limited to “express advocacy,” and noted that the Supreme Court had, in a variety of contexts, upheld disclosure requirements that covered constitutionally protected acts, such as lobbying. Justice Kennedy also said that disclosure of the sources of funding of political advertising “provide[s] the electorate with information” and “insure[s] that the voters are fully informed about the person or group who is speaking.” Further, Justice Kennedy made clear that the “[i]dentification of the source of the advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.” The Supreme Court has stood firmly behind disclosure for decades, explaining in the seminal 1976 campaign finance decision Buckley v. Valeo, for example, that “disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.”
Because the DISCLOSE Act of 2012 follows these guidelines faithfully and is stripped of the exemptions that weighed it down last Congress, every Member of the U.S. House should cosponsor the bill expeditiously.
Justice Antonin Scalia, no friend of campaign finance regulation, has made clear that he views disclosure as essential. In the oral argument of Citizens United, he told the plaintiff’s lawyer, “You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.” Then shortly thereafter in Doe v. Reed (concerning the disclosure of names on a ballot-referendum petition), Justice Scalia made a strong case in favor of robust disclosure: “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”