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Rebuttal to McConnell's War of Misinformation on DISCLOSE Act

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By Lisa Rosenberg

A war is being waged against the DISCLOSE Act. Its commander in chief is Senator Mitch McConnell, his secret weapon is misinformation and his goal is to protect unlimited dark money contributions to the political process.

It's time for a counter-attack.

McConnell outlined his plan of attack in a speech to the American Enterprise Institute. Wrapping himself in a narrow and self-serving interpretation of the First Amendment, McConnell casts liberals as the enemies of free speech and he and his foot soldiers (the Chamber of Commerce) as the true protectors of our constitutional rights. But take apart his arguments and it is easy to spot his true intentions -- not to protect the free speech rights of all citizens, but to protect the ability of wealthy donors to anonymously influence our democratic process.

The Sunlight Foundation refutes the worst inaccuracies being lobbed against reasonable efforts to disclose the dark money that is infiltrating our elections. This Orwellian tactic is timed to defang public support for the DISCLOSE Act, which the Senate is likely to consider in July.

Myth: Laws Requiring Disclosure Are Unconstitutional

In his tirade against disclosure, McConnell ignores decades of well-established constitutional law upholding disclosure of the sources of political expenditures under the First Amendment. The Supreme Court views disclosure as an important and minimally intrusive ways to ensure accountability where free speech and the functioning of our democracy intersect. The Citizens United court itself upheld challenged disclosure requirements by a vote of 8-1, stating, "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." Disclosure has been upheld as constitutional outside of the election process as well. For example, lobbyists, government officials and agents working for foreign governments must comply with certain disclosure requirements.

McConnell recognized the constitutionality of disclosure regimes in the past. As recently as 2010 he said, "We need to have real disclosure. And so what we ought to do is broaden the disclosure to include at least labor unions and tax-exempt business associations and trial lawyers so that you include the major political players in America. Why would a little disclosure be better than a lot of disclosure?" In 2003 he said, "Money is essential in politics, and not something that we should feel squeamish about, provided the donations are limited and disclosed, everyone knows who's supporting everyone else." Now that secret corporate campaign contributions seem to be improving his own party's chances in November, he has forgotten his support for constitutionally permissible disclosures, instead arguing that disclosure is only permissible for contributions to candidates and parties.

Myth: Disclosure Chills Speech

McConnell and others justify their opposition to disclosure by claiming that sunlight "chills speech." McConnell goes on to say that backers of the bill are attempting to "micromanage political speech." Under the DISCLOSE Act, no speech is chilled and no speech is managed, micro, macro or otherwise. No one, not a single wealthy individual, corporation, union, or nonprofit is prevented from saying anything under this bill. The most distorted, misleading, mudslinging political speech is fully protected. The DISCLOSE Act places no limits on how much can be spent on any "independent" political speech. The bill is, as its name suggests, about disclosure and is designed to answer a basic question: Who is the messenger?

When it comes down to it, McConnell is much more interested in protecting the identity of the messenger than the speech itself. He wants to keep secret the names of the corporate or individual donors that are paying tens of thousands or even millions of dollars to influence our elections. (He claims, wrongly, that the DISCLOSE Act doesn't regulate unions. More on that later.) Echoing arguments by the Chamber of Commerce, he worries on behalf of the corporations and wealthy individuals that disclosure will result in intimidation. Rather than face such threats, McConnell says, corporations and wealthy individuals will stop participating in the political process.
McConnell needs a reality check before sounding off about all of the alleged dangers speakers will face if their identities are disclosed. In Doe v. Reed, a 2010 case that, like Citizens United, upheld disclosure requirements, Justice Scalia famously stated:

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 ... campaigns anonymously ... 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.

Remedies exist for groups that can demonstrate that they are subject to harassment due to political disclosure, but the court has never supported pre-emptive anonymity as a remedy for speculative harm. Moreover, much of the potential harm from which McConnell wishes to protect corporate donors is consumer backlash that may result if the public boycotts a corporation's products because it disagrees with the corporation's political positions. Certainly that is not the type of harm our founding fathers, or Justice Scalia, had in mind when envisioning a democracy that works because it fosters a free exchange of ideas.

Myth: Disclosure Limits Freedom of Association

McConnell suggests the DISCLOSE Act would not only restrict freedom of speech, but freedom of association. His claim that, "this bill calls for ... government-compelled disclosure of contributions to all grassroots groups ..." is simply wrong. The bill explicitly allows donors to membership organizations to remain anonymous if they do not wish to have their dues or contributions used for political purposes. Organizations can set up separate accounts so that the disclosure rules would apply only to accounts that fund electioneering or independent expenditures.

Myth: The DISCLOSE Act Singles Out Unions for Favorable Treatment

Another favored canard McConnell likes to trot out is that the DISCLOSE Act treats corporations and unions differently. He bases this twisted version of reality on the fact that the disclosure provisions in the bill apply only to those donors to organizations engaged in political activity who contribute more than $10,000 in a two-year election cycle, and exempts from certain disclosure requirements transfers from affiliates that are less than $50,000 during a two-year election cycle. By setting the disclosure thresholds relatively high, the bill is intended to capture only contributions that, due to their size, could corrupt or appear to corrupt the political process. It is true that the names of average dues-paying union members will not be listed on disclosure reports filed by unions, as individual dues will likely be far smaller than the $10,000 threshold. Neither will the names of donors to a nonprofit organization like the Sierra Club or a trade association like the Chamber of Commerce be listed if their dues or contributions do not exceed the $10,000 threshold. There is no differentiation based exclusively on union membership.

In addition, unlike other membership organizations or corporations, unions are already subject to public reporting obligations under federal labor regulations. Unions must file annual reports with the Office of Labor-Management Standards disclosing any political or legislative disbursements of $5,000 or more.

But McConnell can't have it both ways. He can't argue the law is unfair because it wouldn't require dues paying union members to be named on disclosure reports while at the same time arguing in favor of anonymity to "shield" corporate or wealthy individual donors from harassment.

Myth: Independent Expenditures Don't Corrupt the Process

Although McConnell's go-to argument against disclosure rests largely on a flimsy First Amendment analysis, he and his minions in the fight against sunlight rely on other false premises to justify their opposition to the disclosure. One is that independent expenditures do not corrupt the political process. However, two and a half years after Citizens United, we have evidence that the kind of spending launched by that case both corrupts and leads to the appearance of corruption. Too many Super PACs and nonprofit organizations with ties to candidates have popped up to think they all have a Chinese wall separating their electioneering activities from the candidates. Former high-level operatives in charge of candidates' campaigns have become current high-level operatives in charge of dark money groups that are spending on behalf of the same political candidates.

Moreover, it strains credulity to think that donors to such groups are keeping their generosity a secret. Large, undisclosed donations to outside groups can be presented as calling cards by lobbyists seeking to gain access to an elected official. The possibility of negative ads can be wielded as a threat to members of Congress who don't toe the line the corporate donor has drawn, or as a reward to a compliant politician. Under the law, the appearance of corruption is as relevant to regulating money in the political process as actual corruption. Since Citizens United was decided, both thresholds have been satisfied.

Myth: Current Law Provides Sufficient Disclosure

The disclosure rules in place before Citizens United are simply not sufficient to uncover the sources of the spending unleashed by that case and its progeny. While we know that spending by outside groups in the 2012 elections has already topped the $140 million mark, we don't know where much of that money is coming from. There is limited disclosure of donors by Super PACs, but the donors funding the expenditures of so-called "Section 501(c) groups" like Crossroads GPS, the Chamber of Commerce and Priorities USA are completely hidden from public view. Additionally, such 501(c) groups are being used to launder money flowing into groups where disclosure is otherwise required. Simply put, there is no way for the public to know if the funding of millions of dollars of ads in a swing state by a group called "Citizens for Green Jobs" is being paid for by a single wealthy individual, a corporation, or an environmental group.

Fact: Disclosure is a Constitutionally Protected Way to Address Corruption in the Political Process

The Citizens United court coupled its support for unlimited corporate political expenditures with equal support for robust disclosure. No matter how vigorously McConnell denies it, disclosure is a constitutionally approved remedy for the corruption that comes with unlimited contributions to the political process. When the DISCLOSE Act comes up for a vote in the Senate later this summer, McConnell's war of misinformation should be summarily disregarded and senators should vote on the merits of the legislation, which is fully in line with Supreme Court precedent and the First Amendment.

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