If one were ranking the most cynical, distasteful moments in inside-the-beltway- machinations, yesterday’s announcement by Democratic leaders in the House that they “reached a compromise with” (e.g. caved to) the NRA so the NRA would not oppose the DISCLOSE Act would score high. One of the most powerful special interests in Washington likely twisted arms, threatened retribution—possibly in the form of negative campaign ads—and ultimately managed to have themselves exempted from key requirements of the DISCLOSE Act, a bill that is intended to shine a light on electioneering spending—like negative campaign ads—by the most powerful special interests in Washington.
It’s not a done deal, but if the proposed NRA amendment finds its way into the final legislation, what it will mean is that the NRA will be exempt from the DISCLOSE Act’s requirement that an organization’s top donors be disclosed when the organization pays for campaign ads. Besides creating an unjustifiable carve-out for the NRA, the NRA has positioned itself to be a conduit for undisclosed money in elections. It has created for itself a new business opportunity, that of shell organization for other interests that may want to hide behind the NRA while directly affecting federal elections. The Supreme Court opened the door to exactly this type of activity in its Citizens United v. FEC decision—but by way of the DISCLOSE Act, Congress is attempting to use strong disclosure provisions to minimize the distorting impact of money on elections. For everyone except the NRA (and possibly a few other organizations that qualify under the narrow terms of this deal).
According the Washington Post, the deal would prohibit the use of any corporate or labor union money to pay for the NRA’s campaign-related expenditures. But, as money is fungible, it is easy to imagine the NRA replacing individual contributions with corporate funds in a non-campaign expenditure account, having that much more to spend on electioneering activities. They may never do that, but this amendment insures the public will never know.
We are disheartened that some would forgive the exemption on the grounds that it is so narrow it won’t open the floodgates for secret money in elections. Perhaps it won’t. But the simple fact that the NRA could demand such an exception in a shadowy backroom deal demonstrates why we need more, not less, sunlight on the entire process. It also raises the concern that yet another organization will demand its own carve-out as the bill works its way through the Senate. And perhaps another during conference? Where does the deal-making end and backbone begin?
There will always be loopholes in legislation, whether they are created inadvertently, or by clever lawyers taking advantage of the vagaries of the law, or by courts imposing their own spin on what a law should or should not accomplish. But the willful creation of a blatant loophole that entirely contradicts the intent of the underlying bill is almost too much to accept. Almost. Because in the end, Sunlight grudgingly—and fighting against all our instincts and knowledge of how reform legislation is only as strong as its smallest loophole—accepts that the DISCLOSE Act is still too important to crumble under the weight of the NRA exemption. The Supreme Court did significant damage to the political process in the Citizens United case and, on balance, the DISCLOSE Act’s disclosure provisions still address the corrupting influence of new corporate money in elections by shining a light on where it is coming from. But, if Members of Congress acquiesce to the NRA’s demands, they will demonstrate their willingness to accept more of the status quo and less sunlight.