When the Supreme Court in the Citizens United decision struck down the ban on corporate expenditures to influence federal elections, five Justices radically changed our political system.
The 5-4 Court decision elevated the status of corporations in our democracy and freed them to use their immense, aggregate wealth to flood elections and buy influence over government decisions.
The Justices built the legal rationale for this radical change, however, on a purely fictional premise.
The Court held that corporate campaign spending, if done independently of a candidate, could not corrupt the candidate. Therefore, the Court found, such independent expenditures by corporations cannot be constitutionally restricted.
This legal rationale, however, belies reality. Does anyone reasonably doubt that if a corporation spends $10 million to defeat the congressional opponent of a federal officeholder, that spending creates the opportunity to buy influence with the officeholder, or, at a minimum, creates the appearance of the opportunity for such influence-buying?
The overwhelming majority of Americans recognize this is simply a fact of life.
According to a recent Survey USA poll, more than 75 percent of voters, including 70 percent of Republicans and 73 percent of independents, view corporate election spending as an attempt to bribe politicians rather than as free speech protected by the First Amendment.
Even the Supreme Court has expressed contradictory views on this issue. In 2009, the Court in Caperton v. Massey reached the opposite conclusion from the position it took in Citizens United on the same question.
Justice Kennedy, the author of the Citizens United decision, wrote in Caperton that independent expenditures advocating the election of a West Virginia judicial candidate "had a significant and disproportionate influence on the electoral outcome" and created a "risk of actual bias" so "substantial" that due process required the judge to recuse himself from a case involving the corporation whose executive engineered the expenditures.
The majority in Citizens United tried to distinguish the Caperton decision but could not explain why the corruption problems that it recognized as real in state judicial campaigns were not real in presidential and congressional campaigns.
Which bring us to the DISCLOSE Act.
The DISCLOSE Act would require corporations, labor unions, advocacy groups and trade associations to disclose the expenditures they are making to influence federal campaigns and the donors who are funding these expenditures.
The Act is about the basic right of voters to know who is providing the money being spent in their elections to influence their votes. This right to know has been upheld and re-affirmed by the Supreme Court for decades.
In Citizens United, even as it was opening the door to corporate campaign spending, the Supreme Court held by an 8-1 vote that it is constitutional to require the disclosure of those expenditures. The Court said that disclosure laws serve governmental interests in “providing the electorate with information” about the sources of money spent to influence elections so that voters can "make informed choices in the political marketplace."
The Court specifically pointed to the problems that result when groups run ads "while hiding behind dubious and misleading names," thus hiding the true source of the funds being used to make campaign expenditures.
The Court further found that, "disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."
We are currently seeing tens of millions of dollars being spent to influence the 2010 congressional races without voters having any idea of who is behind this money. In the 2012 presidential and congressional races, we face hundreds of millions of dollars in secret contributions being spent, unless the DISCLOSE Act becomes law.
The DISCLOSE Act passed the House in June and was within one vote of the 60 votes needed to reach the Senate floor in July. The legislation is expected to come up again before Congress adjourns.
Two long-time Senate supporters of campaign finance reform, Maine Republicans Olympia Snowe and Susan Collins, are the key to whether the 60th vote will be provided to pass the Act.
According to a poll taken of Maine voters earlier this year, "85 percent of voters feel it is important to know who paid for the political campaign communications they see or hear," and "[m]ore than 80 percent of Maine voters believe that having the names of donors to political organizations available to the public is important because it keeps the process open and transparent."
Senators Snowe and Collins will hopefully choose to stand with the views and interests of their Maine constituents as clearly reflected in the poll and support Senate action on the DISCLOSE Act.
The DISCLOSE Act does not favor one party or another but carries forward the fundamental principle that voters have a right to know the individuals and entities behind the money spent to influence their votes. It should be enacted in this Congress.
Fred Wertheimer is president of Democracy 21.