On Wednesday, the Senate Rules and Administration Committee convened a hearing to discuss the DISCLOSE Act of 2014 (you can read CCP Chairman Brad Smith’s testimony here). Like many hearings on compulsory disclosure before it, its success in illustrating the major disagreements in modern campaign finance was overshadowed by its failure to offer any new path for resolving them. While the bill’s supporters expressed bafflement at their inability to attract new allies or to garner a single Republican vote for DISCLOSE, the rhetoric on display illustrated why so few have been persuaded to their view. Defenders of the eroding campaign finance regulatory regime have built a dogma supporting their ideology that rejects all criticism as evidence of corrupt or self-serving motives.
Sen. King described political groups who operate independently of parties and candidates as “shadowy groups” in “a parallel universe,” and accused the Supreme Court of “chipping away at the pillars” of our campaign finance regulatory regime.
Sen. Udall (NM) described the current regulatory regime as “failing,” “broken,” and “dismantled step-by-step” by the Supreme Court. He said “corporations became people” in Citizens United v. FEC and that McCutcheon v. FEC was “further opening the floodgates” to “wealthy interests trying to buy elections.” (Neither description of the two aforementioned cases is true, of course). By contrast, Udall described his constitutional amendment – S.J. Res. 19 – as allowing Congress to pass “sensible” reforms, and described the DISCLOSE Act as both “sensible” and “practical.”
Sen. Whitehouse, the DISCLOSE Act’s chief sponsor, called Citizens United “one of the Court’s worst” decisions ever, as well as “the crowning achievement of politicized activist judges” on the Roberts Court. He twice used the phrase “tsunami of slime” (quoted from a Kentucky columnist) to describe advertisements funded by groups who do not disclose donors, and warned that we “must preserve government of, by, and for the people from the tide of money… polluting our elections.”
Sen. Schumer stated flatly that there is no principled reason to oppose disclosure. Case closed, I guess. Everybody can go home now. Sen. Klobuchar talked about fire in a crowded theater, as all would-be censors do, and said money in politics “drowns out” the speech of average citizens so much that “the integrity of our electoral system is at stake.”
Such overheated rhetoric leaves no room for honest disagreement, for study of the evidence, or for consideration of alternatives. Even the hearing’s title – “The DISCLOSE Act (S.2516) and the Need for Expanded Public Disclosure of Funds Raised and Spent to Influence Federal Elections” – makes clear that much of the campaign finance debate is not actually up for debate at all, in the minds of DISCLOSE supporters.
They have already decided that money corrupts. They have already decided that the current disclosure system is a failure. If you disagree, they have already decided that you are aiding the demise of democracy itself. If you suggest that independent spending may not corrupt, or that some disclosure requirements might do more harm than good to public knowledge, you will simply be labeled a shill for Big Money™. Can this be healthy for a topic in which so much is still unknown? Whether they realize it or not, defenders of the existing regulatory regime have elevated its underlying assumptions to the level of gospel at the expense of truth.
So what are us blasphemers – also known as defenders of free speech – to do? We can make, and have made, nuanced arguments about the practical problems in an identical version of the DISCLOSE Act, introduced in 2012. We can make, and have made, arguments about the need to balance disclosure requirements with other values such as protecting donor privacy, lowering regulatory compliance costs, and encouraging political participation. We can, and do, talk about how spending by organizations that don’t itemize their donors accounted for merely 4 to 5 percent of all election-related spending in 2012. We can, and do, talk about why organizations that are not primarily political should not disclose the same as primarily political organizations.
But those arguments have fallen on deaf ears by some in the Senate. Rather than engage, DISCLOSE supporters continue to reiterate the same bumper-sticker straw men: that money isn’t speech, corporations aren’t people, and the public has a right to know.
Well, yeah. We know. We all know. But those of us who are past the silly sloganeering and hashtag activism stage of our political lives and are ready to talk about the law itself know that disclosure is not something that you simply have “more” or “less” of. There are different kinds of donors, different kinds of spenders, different kinds of spending, and different kinds of speech. An in-depth discussion of who should disclose what, how, and how often did not occur at Wednesday’s hearing. Unfortunately, this isn’t surprising. Such a discussion never occurs at hearings like these, because the politicians in charge have already made up their minds. So instead, we just get more of the same: calls for expanding disclosure, without a clear idea of what that really means or looks like coupled with dismissals of all opposition as politically motivated and self-serving.
Proponents of the DISCLOSE Act have made clear that they do not want a conversation. They simply want converts. Hearings like the one held Wednesday are not debates; they are sermons. Unless you belong to the Church of Campaign Finance “Reform,” those preaching probably aren’t speaking your language.
