Congress Is About To Make Citizens United Even Worse

It's making political spending less and less transparent.
Saul Loeb/Getty Images

WASHINGTON -- Congress is about to defund any efforts from a key federal agency to require American corporations to publicly disclose their political spending. The measure is tucked into spending legislation that must pass to avert a government shutdown.

If the spending bill is approved, the provision would further depress hopes from anti-corruption advocates that the Supreme Court's landmark Citizens United decision can be ameliorated through transparency. Although the provision only holds for a year, the willingness of legislators to approve the measure sends a strong signal that the American government intends to stand by the most secretive money-in-politics standards permitted under the 2010 ruling.

Citizens United granted corporations First Amendment rights to free speech that had traditionally been reserved for flesh-and-blood biological entities rather than legal abstractions. This free speech right, according the the Court, included the right to spend money on political activities.

But the Court did not require that such spending be shielded from the public. In fact, the court endorsed disclosure and allowed Congress the right to make companies disclose political spending. After prompting from leading law professors, the Securities and Exchange Commission was poised to write a regulation doing just that in 2013. But new SEC Chair Mary Jo White scuttled the plan, delaying the rule-writing for years.

White, an Obama appointee, has come under withering criticism from Sen. Elizabeth Warren (D-Mass.) and a host of corporate accountability groups for siding with major corporations over investors and public interest groups during her tenure at the agency. The White House has defended White.

"The president does continue to believe that she is the right person for the job," press secretary Josh Earnest told reporters in June, saying White had "earned a reputation as someone who was tough but fair and maintains a sophisticated understanding of a complex set of issues related to the financial markets."

Shortly after taking office in 2013, White gave a speech saying she opposed disclosure efforts intended to bring "societal pressure" against companies rather than aid investors in determining their bottom-line financial situation.

In August, more than 40 Democratic senators signed a letter demanding that White take action on the corporate political spending rule. Activists, moreover, had already successfully pressured White to approve a new rule on CEO pay disclosures, and hoped to accomplish the same for political spending next year.

But Section 707 of Title VII of the new "omnibus" spending bill would make that impossible. None of the funds allocated to the SEC under the legislation can be used to pursue the rule, taking the pressure off White until the next administration -- and giving Congress more time to permanently revoke the SEC's authority to write a political spending rule.

"Mary Jo White has spent more than two years alternatively throwing shade at political disclosure rules and actively hindering their completion," said Jeff Hauser, who runs the Revolving Door Project at the Center for Effective Government. "Mary Jo White gave Congressional Republicans an opportunity to give corporate America a free pass to buy elections and public policy discreetly."

The omnibus bill further includes a ban on the Internal Revenue Service from issuing rules requiring disclosure from 501(c)(4) nonprofits engaged in politics. Groups such as these, including Karl Rove's Crossroads GPS and the billionaire Koch brothers' Americans for Prosperity, have spent hundreds of millions of dollar on election efforts without disclosing their donors since the Citizens United decision.

Another rider attached to the budget bans President Obama from issuing an executive order requiring government contractors to disclose their political spending, including donations to nonprofit groups engaged in elections, as a condition of submitting a bid. As HuffPost has previously reported, this does keep alive the prospect of an executive order mandating disclosure from contractors after they have secured their contract.

Zach Carter is a co-host of the HuffPost Politics podcast "So That Happened." Subscribe here, or listen to the latest episode below:

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