WASHINGTON — During their long campaign to loosen rules on campaign money, conservatives argued that there was a simpler way to prevent corruption: transparency. Get rid of limits on contributions and spending, they said, but make sure voters know where the money is coming from.
Today, with those fundraising restrictions largely removed, many conservatives have changed their tune. They now say disclosure could be an enemy of free speech.
High-profile donors could face bullying and harassment from liberals out to “muzzle” their opponents, Sen. Minority Leader Mitch McConnell (R-Ky.) said in a recent speech.
Corporations could be subject to boycotts and pickets, warned the Wall Street Journal editorial page this spring.
Democrats “want to intimidate people into not giving to these conservative efforts,” said Republican strategist Karl Rove on Fox News. “I think it’s shameful.”
Rove helped found American Crossroads, a “super PAC,” and Crossroads GPS, a nonprofit group that does not reveal its donors.
“Disclosure is the one area where [conservatives] haven’t won,” said Richard Briffault, an election law professor at Columbia Law School. “This is the next frontier for them.”
A handful of conservative foundations, themselves financed with millions in anonymous funding, have been fighting legal battles from Maine to Hawaii to dismantle disclosure rules and other limits on campaign spending.
One group, the Center for Individual Freedom based in Alexandria, Va., has spent millions on attack ads against Democratic congressmen and state judicial candidates. It also has sued to block laws and court rulings that would have required disclosure of the source of the money for the ads.
Jeffrey Mazzella, the center’s president, declined to comment on the lawsuits or discuss the group’s donors, saying the center lays out its positions in detail on its website and in news releases.
Bradley A. Smith, a Republican and former chairman of the Federal Election Commission, is among those whose views have changed on disclosure. In 2003, he endorsed disclosing donors as a way to discourage corruption by “exposing potential or actual conflicts of interest.”
But later, he said, he concluded that disclosure requirements could be burdensome for citizen groups. And now that campaign reports are posted online, he added, people can easily identify and target their opponents.
The business community began fighting disclosure in 2000, when theU.S. Chamber of Commerce, after buying ads supporting candidates for the Mississippi Supreme Court, successfully challenged the state’s requirements on revealing donors.
The anti-disclosure campaign was joined by libertarian legal advocacy centers, such as the Institute for Justice, founded in 1991 with seed money from trusts controlled by billionaire brothers Charles andDavid H. Koch. Starting in 2005, the institute began sponsoring studies that argued disclosure laws were ensnaring ordinary citizens in red tape and inviting reprisals.
Then came California’s Proposition 8, which banned same-sex marriage. After the initiative passed in 2008, some same-sex marriage advocates used the state’s campaign finance data to publicly identify donors who supported the ban. Proposition 8 supporters claimed they were subject to harassing phone calls and e-mails, vandalism and protests.
In arguing against disclosure rules, conservatives even reach back to the civil rights era, when authorities in Alabama tried to identify members of the National Assn. for the Advancement of Colored People. In 1958, the Supreme Court ruled those names could remain secret.
A leader of the crusade against disclosure has been James Bopp Jr., a libertarian lawyer based in Terre Haute, Ind. The original lawyer in the Citizens United case, in which the Supreme Court eased restrictions on independent political spending, he has brought suits to attack campaign rules in at least 30 states. In one of those suits, the Supreme Court on Monday ruled in Bopp’s favor and eliminated a Montana ban on corporate contributions.
Bopp and others say there’s nothing wrong with forcing candidates and political parties to reveal their donors, at least the larger ones. But for private citizens and independent groups, “the price of disclosure is too high,” he said.
So far, the anti-disclosure arguments haven’t won much support on the Supreme Court.
Starting with a key decision in 1976, the court has stood behind the principle that such rules help prevent corruption and keep voters informed. In the 2010 Citizens United case, an 8-1 majority affirmed disclosure rules. And later that year, conservative Justice Antonin Scalia was even more forceful in backing transparency.
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” Scalia wrote in a case involving petition signatures in Washington state.
Despite the court’s support for transparency, federal disclosure regulations remain riddled with loopholes, thanks in part to a 2007 Federal Election Commission regulation that significantly narrowed requirements for outside groups.
Perhaps the most contentious battleground involves campaign-related spending by nonprofit groups financed by anonymous money — nonprofit 501(c)4 organizations, for example, or trade organizations such as the U.S. Chamber of Commerce.
These groups have increased their political activity significantly, particularly after Citizens United and subsequent court cases enabled unlimited independent spending by individuals, corporations and unions. In all, more than $120 million in secret money was spent in the 2010 election, according to an analysis by the nonpartisan Center for Responsive Politics.
In Van Hollen vs. FEC, a case brought by Rep. Chris Van Hollen (D-Md.), a federal court ruled these groups would have to reveal the sources of some of their donations. In a speech Wednesday at the National Press Club, Van Hollen said the arguments about intimidation were overblown.
“I’m sure people are saying things that hurt their feelings,” he said of the wealthy backers of 501(c)4 groups, like the Koch brothers. “But that’s no reason to deny voters the right to have this information.”
The FEC chose not to appeal the Van Hollen ruling — but the Center for Individual Freedom did.
This little-known group, itself a 501(c)4, has become a powerhouse in efforts to eliminate disclosure rules.
The center was founded in 1998 by a former tobacco industry lobbyist with seed money left over from the Smokers Rights Alliance. The center has been involved in a wide array of conservative causes, opposing gun control, criticizing the Mongolian government for its trade policies and passing out fliers attacking the author of “Fast Food Nation.” In 2010, the center received $2.75 million from Crossroads GPS and spent $2.5 million on ads attacking 10 Democratic congressmen around the country.
In 2008, the center bought ads around the country supporting Republicans and attacking Democrats, and it sued regulators who wanted the center to reveal its donors. The center spent freely in an Alabama Supreme Court race, one of the most expensive judicial races in history.
The Democratic candidate, Deborah Bell Paseur, was well-funded with money from plaintiff lawyers and unions. But in the last month of the campaign, the center spent about $1.2 million on ads supporting her Republican opponent and attacking her. Paseur hit back, but ended up losing by less than a percentage point.
“It’s crazy,” said Marion Steinfels, her campaign manager. “We still don’t know who’s really behind them or who really did it.”