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From Inconsistency to Incoherence

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Senator McConnell has recently received criticism for contradicting statements on campaign finance disclosure, which he has supported throughout his political career but now vociferously opposes.

Pushing back against charges of hypocrisy, McConnell insists that his problem lies not with disclosure writ-large, just with all of the current efforts to enact it. Recent proposals to address the role of secret money, McConnell argues, are flawed because they are not comprehensive enough.

The DISCLOSE Act of 2012 would revamp campaign finance reporting for the type of spending unleashed by Citizens United, but has been repeatedly blocked by congressional Republicans. As a result, some administrative agencies have proposed alternative ways to plug gaping loopholes in the law by taking limited measures to provide voters with some information about outside spending ahead of the 2012 elections.

In the Washington Post, McConnell criticized such efforts for being "forced upon some but not all," and said, "No American should face harassment by his or her government simply because that government doesn't agree with the causes he or she supports."

It would certainly be alarming if the Obama administration or congressional Democrats were selectively subjecting groups to additional regulation based on their political beliefs. Fortunately, this is simply not happening. McConnell's claims are -- to put it simply -- patently false.

DISCLOSE, which has drawn so much ire from McConnell, would apply to all organizations organized under sections 501(c) and 527 of the Internal Revenue Code that engage in political activity. It requires such organizations to disclose information about donors who contribute more than $10,000. This legislation would apply to a diverse array of organizations such as: the National Rifle Association, MoveOn, the Chamber of Commerce, and "social welfare" organizations supporting President Obama and Governor Romney's campaigns. The legislation even gives donors the option to remain anonymous by designating contributions to covered organizations for non-campaign-related activities.

This would seem to meet McConnell's criteria for acceptable disclosure legislation. In fact, in 2000, he co-sponsored, along with 22 Republican colleagues, a measure called the Tax-Exempt Political Disclosure Act -- a similar, but even stronger bill than DISCLOSE. It would have required disclosure of all donations greater than $200 to 527s, commonly known as issue advocacy organizations, as well as labor and trade organizations engaged in political activity.

Curiously, McConnell appears to acknowledge the comprehensiveness of DISCLOSE in the same breath that he condemns its under inclusiveness. He argues:

Proponents of the so-called Disclose Act would have us believe that the only groups they're after are those engaged in causes associated with the right. Yet their efforts would also capture such groups as the Humane Society, Immigration Equality and the Environmental Defense Fund.

McConnell can criticize DISCLOSE for being too narrowly or too broadly defined, but he cannot do both simultaneously.

As to the administrative attempts to provide some disclosure in the absence of congressional action, McConnell's argument still does not make sense. Far from targeting exclusively right-wing organizations, IRS enforcement efforts have, so far, revoked tax-exempt status for only one group -- Emerge America, an organization that helps elect female Democrats. The enforcement effort signals to all organizations (liberal and conservative groups alike) that they must uphold the letter of the law.

Assuming, however, that McConnell's complaints amount to more than right-wing victimhood, a clear remedy exists for the exceedingly rare circumstances where disclosure subjects groups to actual harassment. The Supreme Court has repeatedly recognized that groups may challenge and avoid disclosure requirements if they can demonstrate a "reasonable probability" that disclosure will result in "threats, harassment, or reprisals from either Government officials or private parties." In Citizens United, the Supreme Court reaffirmed this principle but insisted, by an 8-1 vote, that the mere possibility of harassment does not raise constitutional concerns for general disclosure laws.

If McConnell is sincere in his desire for strong campaign finance disclosure that applies equally to all similarly-situated organizations, then he should join forces with Senate Democrats in modifying and passing the DISCLOSE Act. If he is genuinely worried that non-profits are being subjected to actual harassment, he should assist members in challenging application of existing disclosure requirements in specific instances. But standing on the sidelines and criticizing any and all efforts toward greater disclosure creates the impression that he seeks to allow wealthy and powerful individuals and corporations to wield great influence in elections -- without accountability. If this impression is mistaken, his actions will speak louder than words in demonstrating his commitment to disclosure.

Jonathan Backer is a Research Associate for the Democracy Program at the Brennan Center for Justice where he focuses on money in politics.