Finding a Point in DISCLOSE

Finding a Point in DISCLOSE

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The battle brewing over the DISCLOSE Act possibly represents a bellwether moment in modern American politics, on its face cast as the everyday, typical “good vs. evil” spar between altruistic public officials and greedy corporate barons.  Still, DISCLOSE-ing corporate spending is one thing: does the bill actually limit or diminish that spending?  Airily titled the “Democracy is Strengthened by Casting Light on Elections,” H.R. 5175 is, perhaps, a Congressional public relations blitz, Marketing 101 made to poster-boy/girl the Democratic Caucus pushing it as idealistic champions of truth and honesty in elections.  DISCLOSE, perhaps one of the most creative legislative acronyms ever penned, seeks to:

“… [A]mend the Federal Election Campaign Act of 1971 to prohibit foreign influence in Federal elections, to prohibit government contractors from making expenditures with respect to such elections, and to establish additional disclosure requirements with respect to spending in such elections, and for other purposes.”

Joined by dual chamber hip, Rep. Chris Van Hollen (D-MD) and Sen. Chuck Schumer (D-NY) introduced the measure back in April as a response to the much vilified Citizens United vs. Federal Election Commission ruling by the Supreme Court in January.  Before writing further, it’s important to note that Van Hollen is Chair of the Democratic Congressional Campaign Committee; in 2008 Schumer stepped down as Democratic Senatorial Campaign Committee Chair.  These are the powerful fundraising arms for the Democratic Party in both chambers.  It’s hard not to wonder how two of the leading campaign fundraisers in the Democratic Party can really alter the system.

The SCOTUSBlog offers what is probably considered one of the more authoritative, lactose free analyses of the ruling and its history if you click right here.  SCOTUSBlog’s Lyle Denniston raises the issues that were, really, never resolved by Citizens United:

After more than a year of study and writing, the Supreme Court … produced a ruling that may make the hundreds of millions spent in past presidential and congressional elections look like a pittance. By removing existing restraints on what and when profit-making and non-profit corporations may say during federal election campaigns, the Court has significantly raised the financial stakes for all such elections, beginning with the primaries this year — the first of which occurs in 12 days, in Illinois. But the Court did not directly settle everything with its release of 176 pages of opinions. Some of the questions that linger are truly open questions after the ruling, some may have been partly settled, and some may actually have been settled, if only by implication.

Perhaps the most important question that one might ask in the wake of Citizens United v. Federal Election Commission is: are labor unions as free as corporations to spend as much as they wish — independently of candidates — to influence elections to Congress and the White House? The likely answer is: Probably, but check back later.

The short of it became a tasty political punching bag for President Obama in his January 27th State of the Union address before Congress, which triggered an unprecedented level of hostility from the SCOTUS justices enjoying front row seats.  You recall Chief Justice John Roberts likening it to a “political pep rally” in an off-script response during a University of Alabama Law School event.  Van Hollen co-authors a passionate op-ed with Rep. Mike Castle (D-DE) to The Washington Post:

On Jan. 21, 2010, the Supreme Court threw out 100 years of established law and legal precedent that protected the integrity of our political process against direct campaign expenditures by big-money special interests. With Americans already struggling to have their voices heard in Washington, the ruling in Citizens United v. Federal Election Commission dramatically expanded the ability of special interests to influence the political process.

Game on – as usual. As with many controversial rulings, Citizens United became another football in that endlessly unnerving game of statutory arm wrestling between the Judicial and Legislative branches.  The High Court, while these days barking conservative, puts very little bite behind that posturing, thereby punting to a Congress – particularly the pesky ideologue little brother known as the House – eagerly thirsting for the flavor of the month.  Hence, the timing is convenient for political theatrics in an election year: the pro-corporate ruling now attacked by anti-establishment theme which, in reality, maintains the same goings on prior to the ruling.  Money still rules the process by all accounts, irrespective of how much money the ruling doesn’t limit.  Does H.R. 5175 really game change anything? Politics Magazine’s Jeremy Jacobs doesn’t seem to think so in a post-analysis of the ruling:

The Court did not overrule contribution limits for corporations or unions—so political action committees will remain. Nor did it undo a ban on foreign corporations making direct or indirect contributions or expenditures in U.S. politics.

In some ways, the High Court merely ruled on expanding the rules of the game. Yet, folks who push the “fundraising floodgates” narrative would have the average observer think that the game was somehow virtuous, fair and pure before Citizens United.  Despite the rhetoric, sponsors attempted to attract bi-partisan support, pimping a Faustian deal through their offer of an exemption to – of all liberal arch-nemeses – the National Rifle Association.  Critics on both the left and right cried foul – the Congressional Black Caucus one of the louder critics on the left who scoffed at the eleventh hour provision.  Framing the debate within the context of a universal fight for free speech (how is transparency not free speech?), the U.S. Chamber of Commerce, to the center-right of it all, took full advantage of the awkward deal by going on an ad binge explains Christopher Santerelli in the Politics Magazine Campaign Insider blog following the issue closely:

The “pass” that the Chamber refers to is a response to the compromise made last week between the NRA and congressional Democrats, that gave the NRA and other large select nonprofit groups exemption from the bill.

The Disclose Act has hit some stumbling blocks in the House. It was supposed to be voted on last week, but backlash over the NRA compromise postponed the measure. If it does make it through the House, it is unclear when the Senate will take it up.

The Chamber’s ad is the latest squabble between traditionally conservative lobbying groups in the post Citizens United political landscape. Along with the Chamber, the National Right to Life Committee, Family Research Council, and Christian Coalition have all released statements critical of the NRA carve-out.

The White House, in its most recent Statement on Administration Policy, supports the bill in principal but doesn’t offer any further insight into what direction Congress could take in terms of the spending:

The administration believes the DISCLOSE Act is a necessary measure so that Americans will know who is trying to influence the nation’s elections,” the policy statement said. “Unless strong new disclosure rules are established, the Supreme Court’s decision in the Citizens United case will give corporations even greater power to influence elections.  This bill is not perfect. The administration would have preferred no exemptions.

Are public disclosures of corporate spending in elections really that effective?  Can transparency mitigate the influence of big money?  And how far does the DISCLOSE Act go in seriously reforming the Federal Election Commission, which is in desperate need of overhaul as it’s barely able to enforce what’s on the books?

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