Torres-Spelliscy: We Can’t Rely Only on Whistle-Blowers

Posted March 16, 2011 at 3:30pm

Earlier this month, WikiLeaks suspect Bradley Manning learned he was facing 22 charges for allegedly providing information to Julian Assange. The price for whistle-blowing just went up. That’s why in a democracy, leaks are not a good enough way to get information to the public. Rather, America needs robust transparency laws, including sound campaign finance disclosure laws.

The truth often has a way of coming out. The public can get a lot of information from whistle-blowers that would otherwise be hidden under lock and key. Just think of the Pentagon Papers, the testimony of Karen Silkwood or the unfolding drama from WikiLeaks’ steady stream of revelations. 

But whistle-blowers tend to have limited bodies of evidence to share with the public. This is constrained by either what they know or what they can get their hands on. And insiders who know the facts face strong disincentives to blow the whistle, ranging from being fired to being sued to being prosecuted. Therefore, to get a complete picture of the role of money in politics, we can’t rely on selfless insiders. Rather, we simply need better disclosure laws.

Months after the 2010 elections ended, America is still waiting for insiders to come forward to let the public know where the secret money in campaigns came from. Even if we were told today who funded the spending, it is far too late to change an electoral outcome. That’s why democracy by whistle-blower is not good enough. What we need are clear disclosure laws applied across the board so voters know who is trying to influence their votes before an election.

At both the federal and state levels, disclosure laws concerning money in politics need a tuneup. At the federal level, big spenders, unleashed by Citizens United, exploit long-standing disclosure loopholes. In a nutshell, if a corporation spends through certain types of nonprofits such as trade associations (501(c)(6)s) and social welfare organizations (501(c)(4)s), then the corporate role is hidden from public view. They don’t have to report to the Securities and Exchange Commission, what they report to the IRS isn’t public, and the Federal Election Commission rules are as porous as Swiss cheese. 

As seen in postmortems of 2010 federal election spending compiled by watchdogs (such as New York City Public Advocate Bill de Blasio), nonpartisan groups (such as the Center for Responsive Politics and Public Citizen) and academics (such as Bowdoin College’s Michael Franz), 33 percent to 46 percent of outside spending on political ads was done by groups that failed to reveal their underlying sources. This means the public still doesn’t know who spent millions of dollars to elect our present Congress. 

In many states, it’s more than a loophole problem. There are simply no laws governing electioneering communications or “sham issue ads” — the vehicle of choice for political ads attacking candidates on election eve. Thirty-three states lack regulation of electioneering communications. Alabama, Indiana, Maryland, New Mexico, North Dakota and Wyoming fail to require disclosure of independent expenditures, or ads that explicitly ask for the viewer’s vote. In these states, the public can only guess who spent money and on what — there is no reporting required. 

But this is a transparency problem that needs improvement across the board, including in federal elections. Congress needs to place its partisan disagreements aside to pass basic campaign finance disclosure laws so that voters can tell who is clamoring for their vote in the presidential election in 2012. Otherwise, American voters will be left waiting for ad hoc whistle-blowers, when what they really need is mandatory disclosure of the sources of money in politics.

Ciara Torres-Spelliscy is counsel at the Brennan Center for Justice at the New York University School of Law, author of “Transparent Elections After Citizens United” and editor of the 2010 edition of “Writing Reform.”