Secret spending in 2012 election reinforces need for DISCLOSE Act

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Super PACs and nonprofit organizations spent millions in the 2012 elections, yet many of these organizations’ donors went undisclosed to the public. According to the Sunlight Foundation, a leading nonpartisan organization devoted to greater government transparency, groups that do not disclose their donors spent at least $213 million in the 2012 general election. As the Brennan Center explained in testimony to Congress last year, organizations with anodyne names like the “Coalition to Protect Seniors” and “Citizens for Strength and Security” spent substantial sums trying to influence voters, yet did not disclose their donors. Nevertheless, as Professor Lawrence Lessig of Harvard Law School has clarified, “It’s dark money to us, but it’s not dark money to the candidates.” The candidates know precisely who is helping them and how they are helping them. After the election, successful spenders will seek to reap returns on their electoral investments. The DISCLOSE Act would bring these relationships out of the shadows and into the public eye.
 
The DISCLOSE Act would require that political spenders who spend at least $10,000 disclose that spending within 24 hours. Many more underlying donors, whose donations currently are not disclosed, would be revealed to the public. New stand-by-your-ad provisions would require that a high-ranking member of the organization appear in advertisements, along with the names of its biggest donors. These are just a few of the benefits of the bill.
 
The DISCLOSE Act rests on firm constitutional ground that complies with both the First Amendment and Supreme Court precedent. Though the Court unleashed unlimited independent spending by outside groups in its Citizens United decision, the case’s less-discussed second half wholeheartedly endorsed strong disclosure laws. Justice Kennedy explained that “disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related and do not prevent anyone from speaking.” The Court said that disclosure of who is spending allows voters to be better informed about the messages they receive in addition to holding elected officials accountable for their actions. In his opinion, Kennedy went on to say, “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.” Indeed, it still does not exist, which is why this bill is so essential.
 
Bipartisan support already exists in the Senate for increased transparency in our elections. In a Washington Post article, Democratic Senator Ron Wyden and Republican Senator Lisa Murkowski endorsed enhanced disclosure while lamenting Congress’s inaction in this area and the “influx of unregulated political cash stemming from the Supreme Court’s 2010 Citizens United decision.” Pointing to Oregon’s campaign finance law, the two senators said “near-immediate disclosure of contributions is not only possible but preferable.” The Senate should follow the lead of Sens. Wyden and Murkowski and support greater transparency in political spending.
 
Rep. Van Hollen’s commitment to passing this vital legislation is commendable and necessary. Congress should act to pass this bill immediately, before another election season of out of control secret spending occurs. In a democratic society, voters deserve to know not only who is trying to influence their votes, but also who is trying to influence their representatives.
 
Earley is counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law.

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