"Sunlight is the best of disinfectants"
Other People's Money -- And How Bankers Use it
Brandeis, the great progressive reformer and jurist, had a point. But a little section slipped into the 1,582-page 2014 appropriations bill reveals that Congress prefers its money politics remain in the dark.
In the spending bill, excessively praised for the bipartisan cooperation that got it done, the Congress voted to bar any effort to require disclosure of contractor political donations or independent expenditures.
The rule is lodged in Title VII of Division E on page 576, just above the provision barring the use of any appropriations to pay for painting official portraits. Section 735(a) reads:
(a) None of the funds made available in this or any other Act may be used to recommend or require any entity submitting an offer for a Federal contract to disclose any of the following information as a condition of submitting the offer:
(1) Any payment consisting of a contribution, expenditure, independent expenditure, or disbursement for an electioneering communication that is made by the entity, its officers or directors, or any of its affiliates or subsidiaries to a candidate for
election for Federal office or to a political committee, or that is otherwise made with respect to any election for Federal office.
(2) Any disbursement of funds (other than a payment described in paragraph (1)) made by the entity, its officers or directors, or any of its affiliates or subsidiaries to any person with the intent or the reasonable expectation that the person will use the funds to make a payment described in paragraph (1).
Clearly, Congress prefers to transact the legal graft that is big money politics behind closed doors. With the Pentagon alone awarding a staggering $140 billion in sole source contracts without any competition in 2010 (up from $50 billion in 2001), we are talking, in former Senator Everett Dirksen's famous formulation, "real money."
Legislators in both parties supported the ban, designed to end desultory White House discussion of issuing an executive order requiring disclosure. The ever dyspeptic Rep. Darryl Issa alleged that disclosure would "politicize" the procurement process and claimed it would have "a chilling effect on participation and free speech."
But even Justice Kennedy, who wrote the decision in Citizens United ruling that corporate contributions constituted speech and couldn't be limited, assumed that the contributions would be publicly known.
Legislators in both parties worried that disclosure would infect, rather than disinfect, the procurement process. Procurement officers -- and the political appointees above them -- would learn who contributed to whom. Republican administrations might kick contracts to corporations that anted up for Republicans, and Democrats the reverse. That makes some sense, although the apparent assumption that appropriators, political appointees and even procurement types don't have a good sense of the legal graft behind closed doors seems risible. The only folks not in the know are Americans whose taxes are being doled out.
As an alternative, a gaggle of law professors submitted a petition urging the SEC to require that all corporations reveal their contributions, arguing that investors had a real stake in understanding the political contributions and activities of companies they invest in. 600,000 comments poured in, almost entirely in favor. But when the SEC published its list of regulatory priorities for the coming year, it omitted any plan to consider making public companies disclosure their political spending.
So the flood of corporate money going into independent expenditures or to fronts like the Chamber of Commerce and others remain in the dark. And the business lobby is intent on insuring that they stay there.
The business lobby opposes disclosure in any form, from the congressional Disclose Act, to the proposed SEC regulations, to the now banned executive order. "Corporations to NOT support increased political and lobbying disclosure," reads a recent release by the US Chamber of Commerce President Tom Donohue, Business Roundtable President John Engler and National Association of Manufacturers President Jay Timmons.
In the Gilded Age, corporations bought their own legislators, or rented them by handing out bucks on the floor of the Congress. Now they are more circumspect, preferring to operate in ways that keep voters in the dark. For the business lobby, Brandeis' disinfectant only would get in the way of business as usual.