Political Campaign Finance “Reform”: Cave Ins and Carve Outs

Last Thursday, by a vote of 219-206, the House passed a bill to reform campaign finance.  Its acronym may be the only clever aspect of this narrow victory.

The DISCLOSE – “Democracy Is Strengthened by Casting Light on Spending in Election”– Act is largely a response to a Supreme Court decision last January. By a vote of 5-4, in “Citizens United v. Federal Election Commission”, the Justices ruled bans on corporate contributions to political ads a violation of what the majority declared to be the First Amendment’s most basic free-speech principle: that the government must not regulate political speech.

While a majority on the court argued that corporations are individual legal entities that should have the same rights to expression as individual human beings, the court minority focused on the danger that big corporations could overwhelm the marketplace of ideas with all their money, corrupting democracy with what many see as a form of legalized, even institutionalized, bribery and the associated payback.  Both sides have compelling perspectives.  They should be taken seriously.

One of the results of these justifiable differences of opinion is the Court’s express permission within its ruling for the government to enhance transparency by publicizing the identities of campaign donors to political ads.  And this is what DISCLOSE is all about.  Or is it?

Unlike the Supreme Court judges, who – absent acts of gross moral turpitude — are appointed for life, members of the House have to be elected and re-elected, regularly.  Our reps’ priorities accordingly tend to be short term and political, and their actions often ironic at best.  In DISCLOSE, the House caved quite transparently to special interests – the big, non-corporate ones.  In a common scenario, lobbyists proved the most bipartisan part of the Beltway.  Although the House began writing its bill ostensibly with concerns over the consequences of giving the big and powerful even more power, our reps appear to have sustained this anxiety only for the corporate sphere.  Bill creation ended by carving out exemptions that reek of favoritism for the politically influential.

Eliminating the ban for corporations also freed up labor unions, trade associations and advocacy groups to give as much as they want to finance ads for the politicians they support.  DISCLOSE is supposed to require them all to go public with the parts they play in TV ads or mass mailings during the last months of any political campaign. Apparently, not only Republicans but also more conservative Democrats were afraid of being targeted by the National Rifle Association (NRA) in the November elections. How are we so sure?

The first carve-out amended the bill to eliminate disclosure requirements for organizations that satisfy the following conditions:

Being in legal existence for more than ten years,

Having members from all fifty states,

Having a total of more one million members, and

Raising no more than fifteen percent of their funding from corporations.

How many organizations met all these criteria?  One.  The NRA.  So legislation supposedly inspired by fear of the big and powerful special interest groups exempted a big and powerful special interest group.

These numerical hurtles have now been reduced so that less-large advocacy groups like the Sierra Club, AARP, and the Humane Society need not disclose their financial support of political ads.  Note, however, that outside of the corporate world, the bill still treats bigger better than smaller. Political power appears still to prevail.

Additionally, the day before the vote, Rep. Robert Brady (D-Pa) presented an amendment with a whole new exemption from DISCLOSURE: transfers of cash from dues-funded groups to their affiliates.  What are the most important “dues-funded groups”?  Unions.  Brady is Chair of the House Administration Committee and owes a lot of his political success to unions.  With this amendment, we can have repeats of the Arkansas experience, where the SEIU spent a reported $10 million to oust Blanche Lincoln in the Democratic primary run-off, and none of the individual contributors will be on record.

Democracy in action?  Surely, we can do better.  Big Unions may once have been justified as providing “countervailing power” to offset Big Business.  This carve-out gives them preeminent power.

There is, however, irony in action yet again.  The unions favor “card check” elections – the signing of union authorization cards instead secret balloting.  This form of disclosure of how workers vote has been criticized as intimidation.  Once unionized, however, if DISCLOSE passes, these same laborers can contribute to political ads without public scrutiny.  The reverse would be much better policy, but apparently it’s much worse politics.

Both “Citizens United v. Federal Election Commission” and DISCLOSE were decided by very narrow margins.  Whether or not it’s constitutional to limit the free speech of corporations whose funds sometimes seem unlimited is a question over which reasonable people can agree to disagree.  But surely discrimination of the sort on display in the House bill should be decried as against the laws of the land, unethical, unconstitutional, and unacceptable.