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."
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.
In a recent speech entitled "Tyranny of the Minority" at the Brennan Center for Justice at New York University School of Law, Senator Tom Harkin described just how abusive the filibuster has become in this Congress:
For the entire nineteenth century, there were only 23 filibusters. From 1917 - when the Senate first adopted cloture rules for ending debate - until 1969, there were fewer than 50 . . . In contrast, during the last Congress, 2007-2008, the majority was obliged to file a record 139 motions to end filibusters. Already in this Congress, since January 2009, there have been 98 motions to end filibusters.
... According to one study, in the 1960s, just eight percent of major bills were filibustered. Last Congress, 70 percent of major bills were targeted.
Second, in the defeat of the Disclose Act, as with efforts to defeat global warming legislation, health care reform, judicial nominations, financial reform, and so much else, facts no longer matter in the Senate. Knowing that going to bat for foreign corporations and corporate welfare recipients would not be very popular, the Republicans instead rallied around a tried and true tactic: union bashing. According to her press secretary, Senator Susan Collins opposed the Act because it "would provide a clear and unfair advantage to unions, while either shutting other organizations out of the election process or subjecting them to onerous reporting requirements that would not apply to unions." Senator Scott Brown complained that unions "would be carved out of this legislation and not face the same regulations that would apply to everyone else."
As with the "death panel" canard used to attack health care reform, the "union carve-out" charge is false. The bill in the Senate applies to "covered organizations," defined specifically as corporations and "any labor organization." In fact, the AFL-CIO opposed the Disclose Act.
In leading the charge to defeat the Disclose Act, Senate Minority Leader Mitch McConnell from Kentucky accused his 58 Senate colleagues and the President of the United States of pretending to care about democracy while actually trying to "rig the fall elections." This is what now passes for leadership.
And look at what's going on in Senator McConnell's home state of Kentucky after Citizens United. John Cheves, of the Lexington Herald Leader, recently uncovered a letter from the Roger Nicholson, general counsel of the International Coal Group, calling on at least four coal corporations, including Massey Energy, to pool corporate money in "a 527 entity with the purpose of attempting to defeat anti-coal incumbents in select races, as well as elect pro-coal candidates running for certain open seats." Mr. Nicholson picks up on Justice Kennedy's moving point in Citizens United that corporations, like any other "disadvantaged person and class," must use their "voices:" "With the recent Supreme Court ruling, we are in a position to be able to take corporate positions that were not previously available in allowing our voices to be heard."
Despite the farce that defeated the Disclose Act in the Senate, there is growing recognition in Washington and beyond that Citizens United and the magnitude of challenges to our democracy call for much more than legislative gamesmanship. Thus it is hopeful to see Senator Max Baucus responding to the defeat of the Disclose Act with his introduction of a Constitutional amendment. "We have got to make sure elections remain in the hands of the people, it's as simple as that," Baucus said. "We Montanans learned our lesson almost a century ago when the copper kings leveraged their corporate power to effectively buy elections. As a result, we have some of the toughest campaign finance laws in the land -- and they work." He joins several other Senators and Representatives and millions of Americans in recognizing that it is time once again for the American people to turn to Article V's basic tool of citizenship to decide for ourselves what kind of democracy we will have in America.
America needs the Disclose Act. Much more, though, we need to amend the Constitution to restore government of the people.