Selective Disclosure

'Democracy Is Subverted by Cynical Legislation that Obscures Substantial Expenditures'

It would seem that there is no bad legislative idea that cannot be sold by giving it an idealistic title or a clever acronym. Apparently you get bonus points for both, hence the Democracy is Strengthened by Casting Light On Spending in Elections Act, or DISCLOSE for short (Get it?). Aside from the self-righteous title, DISCLOSE is a one-sided campaign law that casts blazing light on some groups while leaving unions to do their political activism in the shadows.

Proposed in the aftermath of the Citizens United decision, in which the Supreme Court struck down limits on electioneering by corporations, labor unions and other groups or associations, the DISCLOSE Act ostensibly seeks to place limits on organizations that do business with the government and shed sunshine on the financing of electioneering speech by outside groups.

This is not a wholly illegitimate aim, though it is not without problems in a free society. Under the Citizens United ruling, contributions to candidates are subject to regulation, but free speech is free speech; a company or a union or a group of concerned citizens should not be required to get government permission to speak out on their own about any matter of public concern and that includes elections. The gray area is when there is evidence of coordination between candidates and outside groups.

That aside, sunshine is the best disinfectant, and there is a case to be made that the public would benefit from knowing who is responsible for all the ads that go out at election time. If disclosure is good for the public, then it’s hard to see why any major actor should be free to operate in relative secrecy.

But the DISCLOSE Act’s provisions have been set up in just such a way that unions are exempted. For instance: DISCLOSE requires the reporting of any transfer of $50,000 or more among subsidiaries if that money is used for election ads, unless the funds involved came from periodic dues paid by individuals. Since unions get the bulk of their funds from dues charged to workers as a condition of their employment, unions remain free to shuffle vast sums of electioneering money between locals and national organizations.

DISCLOSE prohibits companies that were bailed out under TARP or that receive substantial government contracts from taking part in any election – whether it be contributing to a campaign or making their own ads. But unions like the UAW, that certainly benefitted from government bailouts, are exempt.

There is no reason, aside from political calculation, why unions should not be subjected to the same level of scrutiny as political parties, companies, or issue groups like the Chamber of Commerce. If anything, the scrutiny should be even closer because so much of their funds are drawn from union dues that workers must pay under threat of losing their jobs. And the amounts that unions have available are huge: the National Education Association alone spent $50.4 million on politics during the 2008-09 school year.

The DISCLOSE Act looks like another political power play. In this case what DISCLOSE really stands for is Democracy Is Subverted by Cynical Legislation that Obscures Substantial Expenditures.