Return of the DISCLOSE Act

It’s well known that the Supreme Court in its 2010 Citizens United decision lifted restrictions on political advertising by unions and corporations, contributing to the orgy of special-interest spending already on view in the 2012 presidential campaign. Less noted was the decision’s reaffirmation of the constitutionality of laws requiring disclosure of the identities of political donors.

Yet as the campaign already has demonstrated, Congress has not done nearly enough to shine the light of disclosure on who is bankrolling efforts on behalf of particular candidates, including those sponsored by supposedly independent “super PACs.” Disclosure is not a panacea for the distorting effects of special-interest money in election campaigns, but at least it allows voters to know who is writing the checks — and to speculate on what they might hope for in return.

Not too late for the general election, Rep. Chris Van Hollen (D-Md.) has introduced a new version of the so-called DISCLOSE Act, which failed in the last Congress. It would maximize and expedite disclosure of information about individuals and corporations contributing money during political campaign seasons. Some might be bankrolling ads that clearly endorse or oppose a candidate; others might be spending on “electioneering communications” that mention the name of a candidate without explicitly advocating his election or defeat. The latter include the notorious “bogus issue ads” that urge viewers to call President Obama or Newt Gingrich or Mitt Romney to complain about their derelictions, as if they didn’t happen to be candidates.

Unlike a previous version of the DISCLOSE Act that included restrictions on political activity by government contractors and corporations with foreign ownership, Van Hollen’s is all about timely disclosure. It would require unions, corporations, super PACs and other organizations that spend $10,000 or more on a “campaign-related disbursement” to disclose their donors to the Federal Election Commission within 24 hours. (Super PACs currently disclose their donors, but on a leisurely schedule.) Among the covered groups would be so-called 501c(4)s, “social welfare” organizations that under the tax law can engage in political activity without disclosing their donors.

Like previous versions of the legislation, the new DISCLOSE Act also would require organizations airing political ads to disclose the ads’ top funders in the broadcasts themselves and include a statement from the head of the organization approving the message. Corporations and unions would have to inform their shareholders and members, respectively, of their political expenditures (although they would not be required to seek approval of those expenditures).

In an election year, it might seem naive to expect Congress to approve more transparency in political spending. But would-be opponents of the DISCLOSE Act need to be reminded that even the Supreme Court that gave us Citizens United emphasized the importance of disclosure — and that resistance to reform invites an obvious question: What do you have to hide?