DISCLOSE Act

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By Ciara Torres-Spelliscy, Assistant Professor of Law at Stetson University College of Law. She is the author of a forthcoming law review article entitled “How Much Does an Ambassadorship Cost?” as well as co-author with Dr. Kathy Fogel of “Shareholder-Authorized Corporate Political Spending in the United Kingdom” in the Spring 2012 issue of the University of San Francisco Law Review.

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One open question vexing voters in 2012 is how much corporate money is influencing the election.  The reason that this basic question is so hard to answer is the broken system we have for reporting money in politics.

Of course, some money in politics can be easily traced thanks to the yeoman’s work of organizations like the Center for Responsive Politics, which runs OpenSecrets.org and the National Institute on Money in State Politics, which runs FollowTheMoney. But these two groups are only as strong as the underlying disclosure laws.

The loopholes in these disclosure laws are big enough to accommodate an armored Brinks truck full of campaign cash. Just like a real Brinks truck, voters can’t see through the truck to tell exactly how much money is in play.

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By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United v. FEC case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. Mr. Clements is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

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A few days ago, Senate Republicans united to defeat the Disclose Act, critical legislation intended to respond to the Supreme Court's invalidation in Citizens United v. FEC of the ban on the use of corporate general treasury funds to make independent political expenditures. The House passed the Act in June. But despite the wishes of large majorities of the American people and of 58 of 100 Senators, the legislation could not get past a Republican filibuster.

Following the modern and somewhat insulting acronym trend, the formal name of the legislation is the "Democracy Is Strengthened By Casting Light on Spending in Elections Act". The Senate version of the Disclose Act would amend the Federal Election Campaign Act of 1971 to restrict political contributions, independent expenditures and electioneering communications by government contractors, recipients of TARP bail-out money, holders of federal off-shore drilling leases, and foreign national corporations. The Act would apply to "corporations and other organizations" and requires reporting and disclosure of the identity of donors to an independent expenditure campaign, disclosure of political spending to shareholders and members, and certification and "stand-by-your-ad" statements by responsible officers of the corporation ("I am XXX and I approve this message.")

In January, President Obama rightly called the Citizens United decision a "strike at democracy itself." Most Americans agree. According to a recent comprehensive poll about Citizens United, 82% of respondents worried that Congress "will not go far enough to keep corporations from having too much influence," and 77% believe that Congress should promote a Constitutional amendment to address the problem.

Yet, in a measure of how damaged our democracy has become due to special corporate interest money, a minority of Senators representing a fraction of the American people killed even the modest response of requiring reporting and disclosure of corporate political spending, and restricting such spending by certain foreign corporations and government contractors.

In doing so, the surreal and undemocratic world of Washington circa 2010 was on full display:

First, preference for action by a wide majority of the American people and even a wide majority of the US Senate doesn't matter. The bizarre filibuster rule, appearing nowhere in the Constitution, again allowed legislation to "fail" despite the support of 58 Senators representing 3/4 of the States and of the American people. Once again, regardless of the wishes of the other 306 million Americans, those fighting for necessary reform were reduced to begging unsuccessfully for the support of Senators Collins and Snowe, representing the 1.3 million good people of Maine.