Senator McConnell's Misguided and Meritless Attack on Campaign Finance Disclosure

Senator McConnell's claim that secrecy in campaign finance activities is needed in order to protect against harassment is a bogus argument that has been repeatedly rejected by the Supreme Court, except in limited circumstances.
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Senate Republican Leader Mitch McConnell recently attempted to turn the world upside down in a speech he gave at AEI that attacked the very idea of campaign finance disclosure, which has been the cornerstone of campaign finance laws for many decades.

Senator McConnell conveniently forgets that secret campaign money was at the heart of the Watergate scandal that began 40 years ago on June 17, 1972 and was the worst political and campaign finance scandal of the 20th century.

In his speech, Senator McConnell describes campaign finance disclosure as an effort by the left and the Obama administration to stifle free speech.

Senator McConnell failed to mention in his speech that the Supreme Court in its Citizens United ruling -- which was passed by an 8-to-1 majority, including votes from four of the five conservative Justices -- upheld campaign finance disclosure as constitutional and a requirement for outside spending groups.

What is really going on here is that Senator McConnell is cloaking his partisan opposition to disclosure in the rhetoric of free speech.

Senator McConnell does not have a constitutional or policy leg to stand on.

Senator McConnell's speech today is about protecting the ability of groups, like the Chamber of Commerce and Crossroads GPS, to keep secret from the American people the identities of the donors who are financing their campaign expenditures.

The Supreme Court said in Citizens United that disclosure requirements are constitutional because they serve important governmental interests in "providing the electorate with information about the sources of election-related spending," in order to help citizens "make informed choices in the political marketplace."

The Court also said in Citizens United that it had earlier upheld disclosure laws to address the problem that "independent groups were running election-related advertisements, while hiding behind dubious and misleading names."

In his speech, Senator McConnell also ignores the powerful support for disclosure provided by Justice Scalia. In Doe v. Reed (2010), Justice Scalia stated, "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."

Senator McConnell no doubt sees a big partisan stake in protecting the ability of secret money to be laundered into federal elections. Outside spending groups supporting Republican congressional candidates, such as the Chamber of Commerce and Crossroads GPS, currently have raised the bulk of secret contributions that are being spent in federal elections. These groups do not want to disclose to the American people the identities of the donors whose money they are spending on ads to influence the voters.

For example, Crossroads GPS has disclosed on its tax returns that there are 23 donors who have each given $1 million or more to finance their campaign activities. However, the identities of these donors have not been disclosed because Crossroads GPS claims status as a section 501(c)(4) group, even though its overriding purpose is to influence elections.

Senator McConnell's speech also serves the purpose of offering cover for his Senate Republican colleagues who are expected to have to vote next month on the DISCLOSE Act sponsored by Senator Sheldon Whitehouse.

Until 2010, there was consensus support among Democrats and Republicans alike regarding campaign finance disclosure, although not from Senator McConnell. That changed in 2010 following the Citizens United decision when outside spending groups started spending large amounts of money provided by secret donors to support Republican congressional candidates.

Senator McConnell's claim that secrecy in campaign finance activities is needed in order to protect against harassment is a bogus argument that has been repeatedly rejected by the Supreme Court, except in limited circumstances.

The Court has said that a disclosure provision would be unconstitutional as applied to a specific organization only if the organization could establish "a reasonable probability that the group's members could face threats, harassment, or reprisals if their names were disclosed."

In these circumstances, the Supreme Court has said that even where a specific group could show such a "reasonable probability" of harassment, the remedy would be to exempt that specific organization from disclosure; not to strike down the disclosure requirements for all groups.

The notion that groups may come under public scrutiny and criticism for their campaign activities has never been viewed by the Supreme Court as constituting the kind of "threats, harassment or reprisals" that would justify overturning campaign finance disclosure requirements.

Senator McConnell's protestations notwithstanding, the Supreme Court has rejected the argument that disclosure requirements stifle speech and the Court has repeatedly upheld such requirements as serving important governmental purposes in providing voters with information they have a right to know about those who are trying to influence their votes.

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