House Democrats finally won passage of the DISCLOSE Act last week, but they have little to celebrate.
The bill, which sets out to shed light on corporate and interest group campaign spending, faces an uphill battle in the Senate. A constitutional challenge would be inevitable. And even if the legislation is enacted and upheld, it will do little to fundamentally shift the balance away from private money in American elections.
Even the political advantage Democrats may have hoped to gain by championing reforms is blunted by the perception that the DISCLOSE Act includes special carve-outs for the National Rifle Association and other influential groups.
Not that the bill is a total loss. Sen. Charles Schumer, D-N.Y., and Rep. Chris Van Hollen, D-Md., authored it as a well-intentioned response to the Supreme Court's ruling this year to reverse the ban on direct corporate and union campaign spending. In addition to beefed-up disclosure rules, the bill bars direct election expenditures by corporations that are substantially foreign-owned and those that have large government contracts.
Many of the attacks on the bill, which hit a wall of opposition from GOP leaders and from the U.S. Chamber of Commerce, didn't hold water. Opponents cast the bill as a partisan power grab that favored unions over corporations. Though some provisions simply would not affect unions, such as the curbs on contractors and foreign-owned companies, the disclosure rules apply across the board.
Even the deal struck with the NRA was not as bad as it looked. The bill was amended during negotiations to exempt large membership organizations with a national presence, most notably the NRA. After a storm of criticism over the special treatment lavished on the gun lobby, the exemption was broadened to capture a broader range of interest groups, including the Sierra Club. Reform advocates were still not happy, but they ultimately backed the bill.
As Van Hollen noted, however, the bill was never really aimed at nationally known membership organizations, but at the secretive front groups that many fear big corporations will now exploit in the wake of the Citizens United ruling. The bill "will shine a light on political expenditures and ensure that shadowy special interests, sham organizations and dummy corporations cannot mislead voters," Van Hollen said after its enactment.
Even so, the bill has been problematic from the start. Because the legislation captures not just big corporations but all incorporated groups -- whether they be nonprofit civic organizations, advocacy groups or trade associations -- Schumer and Van Hollen walked into a hornets' nest. It's one thing to go after corporate behemoths such as BP and AIG. It's another to tell citizen groups, including many of Democrats' liberal allies, to reveal their top campaign donors.
The bill "would wipe away donor anonymity -- most notably, that of small donors to smaller and more controversial organizations, even when those donors have nothing to do with that organization's political speech," said Michael MacCleod-Ball, the ACLU's chief legislative and policy counsel. "It would also restrict speech rights in an arbitrary manner, favoring one type of organization over another."
More importantly, the bill missed an opportunity to inject public funding into elections, a "floors-not-ceilings" approach that is endorsed by a growing coalition of election law experts. Some reform advocates have complained from the start that the DISCLOSE Act did not go far enough.
They're pushing for House action on the Fair Elections Now Act, which would provide matching public funds to congressional candidates who collect small donations. Authored by Rep. John Larson, D-Conn., that bill has 156 cosponsors in the House. The Senate version is authored by Illinois Democrat Dick Durbin.
Of course, public financing is a political nonstarter, given intransigent GOP opposition to what Republicans deride as taxpayer funding for elections. Ironically, though, a simple bill that bolsters campaigns from the ground up, rather than imposing complex new rules from the top down, could prove less controversial in the long run. Public financing enjoys growing voter support, polls show, and it may be one of the few reforms that would pass muster with the increasingly deregulatory Supreme Court.
In the meantime, Democratic leaders remain publicly committed to the DISCLOSE Act. President Obama has made it a leading priority, and Schumer and Senate Majority Leader Harry Reid, D-Nev., have pledged to push hard for it in the Senate. Reid has announced that 50 senators now back the bill. However, he's also been quoted as saying that he lacks the 60 votes needed to overcome an expected filibuster.
"This has got a sheer-cliff, steep climb to ever make it out of the Senate," said R. Bruce Josten, the chamber's executive vice president of government affairs, who's spoken out vigorously against the DISCLOSE Act in recent weeks.
In theory, a bill that improves accountability and transparency in political campaigns should enjoy broad, bipartisan support. The acronym that gives this bill its name, if something of a mouthful, cannot be contested: Democracy Is Strengthened by Casting Light on Elections. But for better or worse, the DISCLOSE Act is starting to fall of its own weight.