In a New York Times article today, Chamber of Commerce lobbyist R. Bruce Josten is quoted as saying that an Executive Order being considered by the White House to require government contractors to disclose their campaign finance activities "is meant to have a chilling effect."
According to the article, "Mr. Josten said that the order as drafted would stifle free speech rights for businesses that worked with the government by subjecting them to harassment and protests if their political spending was disclosed."
In fact, government contractors already disclose some of their campaign finance activities by disclosing their PAC contributions and expenditures.
The Executive Order would ensure that they disclose all of their campaign finance activities, including the activities newly permitted as a result of the Citizens United decision striking down the ban on corporate expenditures in federal elections.
The Josten attack represents a continuation of efforts by the Chamber of Commerce that began in the last Congress with their opposition to the DISCLOSE Act in order to keep secret from the American people the sources of corporate funds being spent to influence federal elections.
Mr. Josten’s absurd position takes an "Alice-in-Wonderland" approach to transparency, a fundamental principle of our democracy and democracies all over the world.
The comments by Mr. Josten represent just one more round of red herring arguments being made by the Chamber of Commerce in order to keep secret from the American people the sources of the tens of millions of dollars the Chamber is spending to influence federal elections.
According to the article, Mr. Josten also said that the business group "is not going to tolerate" this "backdoor attempt" to silence private sector opponents by disclosing their political spending.
However, the fact is that the American people are not going to tolerate potentially corrupting, secret money being spent to influence federal elections and government decisions.
Transparency is universally viewed by democracies as an essential means to ensure that citizens are informed about the actions of their governments and as a key to preventing government corruption. Mr. Josten, however, argues, in essence, that transparency is bad for our democracy and secret money in American elections is good.
The American people overwhelmingly support disclosure of campaign activities by outside groups. According to a New York Times/CBS Poll last year (October 28, 2010),
92 percent of Americans said that it is important for the law to require
campaigns and outside spending groups to disclose how much money
they have raised, where the money came from and how it was used.
The Supreme Court by an 8 to 1 majority in the Citizens United case supported campaign finance disclosure and flat-out rejected the kind of claims raised by Mr. Josten that disclosure stifles free speech and is meant to have a chilling effect. In upholding the constitutionality of disclosure provisions for corporate campaign activities, Justice Anthony Kennedy writing for the majority said that disclosure requirements, "do not prevent anyone from speaking."
The Supreme Court said in Citizens United that corporate disclosure requirements allow shareholders to 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."
In a concurring opinion in Doe v. Reed, a case dealing with disclosure of petition signers for ballot measures, Justice Antonin Scalia made an even more forceful defense of transparency. Justice Scalia wrote, "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."
For decades, requiring disclosure of money being raised and spent to influence elections has been a core principle of campaign finance laws enacted to prevent corruption and inform citizens.
In the landmark case of Buckley v. Valeo in 1976, the Supreme Court upheld federal campaign finance disclosure laws, stating "disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity."
In the last Congress, 41 Senate Republicans, supported by the Chamber of Commerce successfully filibustered and blocked the DISCLOSE Act which would have required the same kind of disclosure found in the draft Executive Order for government contractors on an across the board basis for corporations, labor unions, tax-exempt advocacy groups and business trade associations.
As a result of the failure, by one vote, to pass the DISCLOSE Act, various efforts are being undertaken now to obtain as much disclosure as possible through other means. Democracy 21 strongly supports this approach.
For example, the Democracy 21 legal team filed an FEC lawsuit and FEC petition last week on behalf of Representative Chris Van Hollen that challenges as contrary to law, FEC regulations that have eviscerated already existing contribution disclosure requirements.
The American people overwhelming disagree with the position taken by Mr. Josten and the Chamber.
Eight of the nine Supreme Court Justices reject the position taken by Mr. Josten and the Chamber.
President Obama should ignore the position taken by Mr. Josten and the Chamber and should move full speed ahead to implement the Executive Order requiring disclosure of campaign finance activities by government contractors.