The ramifications of today’s Supreme Court decision in Citizens United v. FEC are breathtaking – opening the floodgates of political money such as we have never seen before.  If you thought Congress was ‘for sale’ to the highest bidder, you ain’t seen nothing yet. Nothing less than a fundamental rethinking of our campaign finance laws is demanded as a result of today’s decision.

But one thing becomes immediately clear: Transparency about the flow of campaign cash – online and in real time – became more important. While we do not think that transparency is a panacea for the horrific consequences of today’s decision, it is critically important as the shredded system is rebuilt.

Today’s decision underscores the necessity of creating comprehensive real-time disclosure for all election spending – across the board -- from when and how often candidates, individuals and PACs report their contributions and expenditures to those involved in independent expenditures, issue ads or direct election advocacy.

Others will opine about what the Court wrote about lifting the limits and other related matters that were at the heart of this case, but we want to focus on the disclosure aspects of this case.

The Majority wrote:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests…This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

The Court goes on to note the Internet’s importance when it comes to meaningful disclosure, saying that “modern technology makes disclosures rapid and informative…A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today.”

True enough, but the disclosure system they describe doesn’t yet exist. The current disclosure system is insufficiently “rapid and informative” and does not make effective use of modern technology.

As a result of this decision, there will be tidal wave of corporate campaign expenditures. The systems for disclosure will have to come into the 21st century. Everything has to be reported online. All related campaign expenditures, including the new wave of issue ads, and independent expenditures and direct electioneering must be disclosed within 24 hours, with the names and addresses of anyone who has given more than $200 in support of the ad disclosed online. In fact, there should be 24-hour online reporting of all contributions of more than $200. The quarterly reporting system now in place is outdated and ineffective—ridiculous, in a word.

There is more to this case that deserves analysis, and more will come from Sunlight. We could go on and on about how wrong-headed Justice Thomas’ no-disclosure dissent is. We need to watch out that the court doesn’t use the guise of “protecting donors from harassment” as an excuse to limit disclosure.

But in the meantime, this decision should trigger momentum toward ensuring that all election-related information is available online in real-time. Disclosure remains a crucial antiseptic to the corrupting influence of money in politics. We should ensure our system is as transparent as possible.

We’ll have more to say, later today.

The Sunlight Foundation filed a friend of the court brief before the U.S. Supreme Court on Friday in a landmark campaign finance case that threatens public disclosure of election-related contributions and expenditures. The case, Citizens United v. Federal Election Commission, is scheduled for argument on September 9, 2009. One issue at stake is the public's right to know who is funding political ads, and how much money they have spent.

The case arose in the context of whether the FEC could regulate a 90-minute, video-on-demand film, “Hillary: The Movie,” which criticized then-presidential candidate Hillary Clinton. The FEC had held that the film is a 90-minute paid political advertisement, and could be regulated under the Bipartsian Campaign Reform Act (BCRA). That decision has been appealed up to the Supreme Court.

As part of its review of the FEC's decision, the Supreme Court is examining the constitutionality of BCRA's disclosure requirements – that is, identifying who paid for the ad. It is also exploring whether to overrule its 1990 decision in Austin v. Michigan Chamber of Commerce and its 2003 decision in McConnell v. Federal Election Commission. Although those cases are better known for upholding limits on corporate spending, the rulings also touch upon the constitutionality of laws that require disclosure of who made election-related expenditures.

The Sunlight Foundation is concerned that overturning Austin and McConnell will have a negative effect on government transparency. Even were the Court to strike down regulations that ban the expenditure of corporate treasury (i.e., non-PAC) funds on producing “Hillary: The Movie,” we believe that the public has the right to know who is funding the movie, and how much they have spent doing so. In addition, striking down Austin and McConnell would likely generate uncertainty about the constitutionality of many other laws that require disclosure and reporting of campaign contributions and expenditures. There should be no doubt that our transparency laws are on solid constitutional footing.

Our amicus brief is focused solely on the issues of disclosure of information and government transparency. It was written by former New Jersey Supreme Court Justice Gary Stein. The National Institute on Money in State Politics and The Center For Civic Responsibility have joined us as signatories.

To strengthen the relationship between citizens and their elected officials, foster public trust in government, and remove corruption and the appearance of corruption, the Supreme Court must reaffirm that election disclosure requirements are constitutional and apply to the entire range of electioneering communications, regardless of whether they are express advocacy or issue advertisements. The public has a right – and the need – to know.

The brief is available here. More on Citizens United is available here.

Citizens United Amicus Brief Final