Partisans united

Saturday’s editorial:

“The First Amendment protects political speech; and 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.” - U.S. Supreme Court Justice Anthony Kennedy, writing for the majority in “Citizens United v. Federal Election Commission.”

It’s a shame that the U.S. Senate was unable to pass a law this week ensuring that voters know who is behind the flurry of corporate spending on political ads that this fall is sure to bring. But it’s also unclear whether the legislation they were considering was the right law for the task. If members of both parties have to suffer through anonymous attack ads this fall as a result, perhaps they are getting what they deserved.

In the “Citizens United” ruling earlier this year, the U.S. Supreme Court deemed unconstitutional a ban (from the McCain-Feingold campaign-finance reforms of 2002) on corporate-sponsored ads attacking or praising specific candidates. Political advertising is a form of speech, no matter who does it, and Justice Anthony Kennedy’s majority opinion was a vigorous defense of free speech - arguing, among other points, that knowing which candidates various corporations support will better inform the electorate.

But the American notion of an open government also demands that citizens know who is participating in our elections. For that reason, “Citizens United” demanded a legislative response, a new regulation to ensure that all these new corporate political ads clearly identify their sponsors. Notably, though the Supreme Court struck down the McCain-Feingold ban on corporate political advertising, they left intact the same law’s so-called “Stand By Your Ad” provision that led the often-mocked line, “I’m so-and-so and I support this message” at the end of campaign ads. In fact, Justice Kennedy’s opinion for the conservative majority explicitly defends these kinds of disclosure requirements.

Thus, President Obama requested and Congressional Democrats delivered the DISCLOSE Act, which would have placed these same requirements on corporations in time for this year’s elections. By a narrow, party-line vote of 57-41, the bill failed this week to reach the Senate floor, and thus is likely dead. Republicans complained that the bill’s actual disclosure mechanisms were overly onerous on small nonprofit groups, and that it unfairly exempted some special interest groups (including, oddly, the National Rifle Association).

Those points are debatable, but it is deeply troubling that the bill’s co-authors are U.S. Sen. Chuck Schumer and U.S. Rep. Chris Van Hollen, the former chair of the Democratic Senatorial Campaign Committee and the current chair of the Democratic Congressional Campaign Committee, the two official organizations dedicated to getting more Democrats elected to their respective chambers of Congress. All political parties are occasionally guilty of trying to use their majorities for self-preservation - such as South Carolina Republicans attempting to forcefeed voter identification rules on wary Democrats this year - but asking Congress’s chief electioneers to write the elections bill seems particularly brazen.

There are Republicans who support campaign-finance reform, and a better start would have been to recruit one of them as a co-author. Both John McCain and Russ Feingold (the original bill’s Republican and Democratic authors) are still in the Senate, for example, and could have reunited for the fix. If they were too preoccupied with their primary challenges this year to write a bipartisan bill, four Republicans who voted for McCain-Feingold eight years ago remain in the Senate: Sens. Thad Cochran of Mississippi, Richard Lugar of Indiana and Susan Collins and Olympia Snowe, both of Maine. Options abounded.

But the Republican Party, with few exceptions, ought not escape blame here either. Almost all their public objections to DISCLOSE wallowed in criticism of the Democrats’ gamesmanship without themselves acknowledging the need for better disclosure after the “Citizens United” ruling. One missed opportunity begat another.

So the Democrats appear to have written a partisan bill that got a predictably partisan response. It’s time to try again, but we may have to endure an unusually nasty election cycle first.

In the “Citizens United” ruling earlier this year, the U.S. Supreme Court deemed unconstitutional a ban (from the McCain-Feingold campaign-finance reforms of 2002) on corporate-sponsored ads attacking or praising specific candidates. Political advertising is a form of speech, no matter who does it, and Justice Anthony Kennedy’s majority opinion was a vigorous defense of free speech - arguing, among other points, that knowing which candidates various corporations support will better inform the electorate.

But the American notion of an open government also demands that citizens know who is participating in our elections. For that reason, “Citizens United” demanded a legislative response, a new regulation to ensure that all these new corporate political ads clearly identify their sponsors. Notably, though the Supreme Court struck down the McCain-Feingold ban on corporate political advertising, they left intact the same law’s so-called “Stand By Your Ad” provision that led the often-mocked line, “I’m so-and-so and I support this message” at the end of campaign ads. In fact, Justice Kennedy’s opinion for the conservative majority explicitly defends these kinds of disclosure requirements.

Thus, President Obama requested and Congressional Democrats delivered the DISCLOSE Act, which would have placed these same requirements on corporations in time for this year’s elections. By a narrow, party-line vote of 57-41, the bill failed this week to reach the Senate floor, and thus is likely dead. Republicans complained that the bill’s actual disclosure mechanisms were overly onerous on small nonprofit groups, and that it unfairly exempted some special interest groups (including, oddly, the National Rifle Association).

Those points are debatable, but it is deeply troubling that the bill’s co-authors are U.S. Sen. Chuck Schumer and U.S. Rep. Chris Van Hollen, the former chair of the Democratic Senatorial Campaign Committee and the current chair of the Democratic Congressional Campaign Committee, the two official organizations dedicated to getting more Democrats elected to their respective chambers of Congress. All political parties are occasionally guilty of trying to use their majorities for self-preservation - such as South Carolina Republicans attempting to forcefeed voter identification rules on wary Democrats this year - but asking Congress’s chief electioneers to write the elections bill seems particularly brazen.

There are Republicans who support campaign-finance reform, and a better start would have been to recruit one of them as a co-author. Both John McCain and Russ Feingold (the original bill’s Republican and Democratic authors) are still in the Senate, for example, and could have reunited for the fix. If they were too preoccupied with their primary challenges this year to write a bipartisan bill, four Republicans who voted for McCain-Feingold eight years ago remain in the Senate: Sens. Thad Cochran of Mississippi, Richard Lugar of Indiana and Susan Collins and Olympia Snowe, both of Maine. Options abounded.

But the Republican Party, with few exceptions, ought not escape blame here either. Almost all their public objections to DISCLOSE wallowed in criticism of the Democrats’ gamesmanship without themselves acknowledging the need for better disclosure after the “Citizens United” ruling. One missed opportunity begat another.

So the Democrats appear to have written a partisan bill that got a predictably partisan response. It’s time to try again, but we may have to endure an unusually nasty election cycle first.