This Sunshine Week, as the nation commemorates the importance of open government and freedom of information, the Sunlight Foundation is leading a campaign to engage voters to call on their lawmakers and the Obama administration to address the disastrous effects of the game-changing rulings by the Supreme Court in Citizens United v. Federal Election Commission (FEC) and a federal district court in SpeechNow.org v. FEC. These rulings paved the way the rise of super PACs and for a small group of elites to spend unprecedented sums—with little or no transparency—to influence voters.
As we’ve seen this Republican primary season, Super PACs are providing enough outside financial support to boost and prolong the campaign of candidates whose own coffers have run dry. In effect, they are shadow campaigns, and have already spent more than $69.2 million to support or oppose presidential candidates.
While we know what super PACs spend on in near real time via the FEC’s website (aggregated by Sunlight and downloadable here), we have to wait to learn who is giving them money because of disclosure filing rules. And, even then we don’t get the whole picture. That meant that voters in the Iowa Caucuses and three early primaries had to wait until after they cast their votes to find out who was trying to influence them– even though the technology exists to disclose within 24 hours.
More alarmingly, we are also witnessing a proliferation of completely undisclosed ‘dark money’ in the presidential race. Well-heeled donors can conceal their identities by giving to social welfare groups [known as 501(c)(4)s for their tax exempt status] that do not have to disclose who funds them.
Moreover, the law allows 501(c)(4)s to make direct election expenditures, and some have during the presidential race. That means they can spend money to influence races without ever revealing the sources of their funding.
All of this allows innocuously named groups to shelter the names of powerful individuals and corporations. During the 2010 mid-term election (the first after Citizens United) $126 million of the $455 million spent by outside groups came from these ‘dark money’ groups.
To address this problem, Congress should take immediate action by passing the DISCLOSE Act, recently introduced in the House (H.R. 4010, available via OpenCongress here). This bill is an update to a previous version introduced two years ago in the last Congress, and goes straight to the problem: the lack of transparency for unlimited, secret super PAC money and the influence it has on our elections and our elected officials. This simplified bill, stripped of controversial non-transparency provisions the previous version contained, is a good solution to the 'dark money' problem.
It is straightforward legislation that should have bipartisan support—even Sen. Mitch McConnell (R-KY) once told NBC’s Meet the Press that “Republicans are in favor of disclosure.” So why have only Democratic House members co-sponsored it so far? (There are 155 co-sponsors as of March 13, 2012.) Meanwhile, inexplicably, DISCLOSE has yet to be introduced in the Senate.
The Supreme Court believes that disclosure is the cure to these ills, and even prescribed online transparency as the antidote to address any concern about the new landscape of campaign finance it created. Although that disclosure regime does not yet exist, it can, if Congress passes the DISCLOSE Act now. If political money is “speech” as the Supremes argue, shouldn't we be able to know the identity of the person who is speaking to us?
President Obama used to push for such disclosure, although his voice on true campaign finance transparency reform fell silent during this year’s State of the Union address. That was a precursor to his subsequent capitulation to the lure of super PACs despite the president’s previous pleas to Congress to address the “corrosive influence of money in politics.”
President Obama’s unfortunate decision to allow White House and cabinet officials to actively solicit donations toward Priorities USA, the super PAC supporting the president’s re-election, can also be addressed with disclosure. The president should lean on Priorities USA, who should disclose top officials' attendance at fundraisers. He should also require White House officials and cabinet secretaries to disclose their attendance at fundraisers somewhere as part of their schedule, as the president himself does. The Hatch Act may create some difficulties in finding the right mechanism for this disclosure, but we need a better answer than total secrecy.
Because under the system we have now, the country's most powerful officials have an incentive to precede every official action with a meeting of the most well-heeled donors who are likely to be affected, and the public will be left in the dark. If cabinet officials attend unlimited fundraisers, every act of their work becomes a potential hook for pressuring donors. The very least we can do is make it possible for the public to understand how top officials are involved with these fundraisers.
Without public disclosure of cabinet and White House officials' involvement in unlimited fundraisers, who gets to define acceptable cabinet-level involvement in fundraising? At its best, cabinet officers all get a new distraction to their duties, at its worst, the executive branch itself becomes an extension of the presidential dark money machine.
Disclosure remains a crucial antiseptic to the corrupting influence of money in politics.
The Sunlight Foundation is a non-partisan non-profit that uses cutting-edge technology and ideas to make government transparent and accountable. Visit SunlightFoundation.com to learn more about Sunlight’s projects, including InfluenceExplorer.com and Party Time.