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Anti-Disclosure Backlash Carries Risks for GOP

At a private gathering of conservative political donors last year, Senate Majority Leader Mitch McConnell applauded the state of American elections today, which he described as more deregulated than at any point in recent memory.  

“We now have, I think, the most free and open system we’ve had in modern times,” McConnell, then the Senate Republican leader, told donors gathered at the annual retreat organized by the billionaire industrialists Charles and David Koch.  

McConnell’s assessment should have been music to the ears of conservatives who oppose campaign finance restrictions. But it stands in stark contrast to the daily drumbeat of warnings from conservative bloggers, opinion writers, activists and lawmakers that free speech is under assault from dangerously aggressive government regulators.  

“I wish that political speech were not under attack from so many elected officials,” declared Sen. John Cornyn, R-Texas, at a program last month hosted by the U.S. Chamber of Commerce Foundation titled, “Protecting Free Speech for American Business.” Having once championed full deregulation and disclosure as the solution to campaign financing, GOP leaders now equate political transparency with government censorship and political intimidation.  

The conservative backlash against disclosure is among the most important outcomes of the Supreme Court’s Citizens United v. Federal Election Commission ruling, which five years ago lifted all limits on independent political spending. The ruling has disproportionately boosted  political spending by groups that fail to publicly report their donors. It has also spawned a conservative campaign to discredit political transparency, forestall new reporting restrictions and challenge disclosure regulations in court.  

It’s a risky gambit. Republicans remain justifiably outraged at the IRS for, by its own admission, targeting the tea party and other groups seeking tax exemptions. And the IRS scandal points out the dangers inherent in government regulations aimed at curtailing speech surrounding policies and issues, which can inadvertently sweep up average citizens along with millionaire donors. But some Republicans argue that the GOP crusade against disclosure is a poor political bet, saying such arguments threaten Main Street business interests and will run aground in the courts.  

GOP strategist Mark McKinnon worries “Republicans have ceded this whole idea of reform of money in politics to Democrats.” McKinnon teamed up with several other GOP luminaries, including conservative political consultant John Pudner, to launch a new Republican campaign finance group dubbed Take Back Our Republic . Among other goals, the group will look for ways to bring small donors back into the political process.  

“As conservatives, we believe in market forces,” McKinnon said. “We believe in free markets. The problem is, the system we have today is no longer a free marketplace of ideas or policies. All the public policies in Washington today are dictated by money.”  

Similar concerns have prompted a long list of blue chip companies, from JP Morgan Chase to Exelon, Merck, Microsoft and Lockheed Martin, to voluntarily disclose their political expenditures via an annual index spearheaded in part by the Center for Political Accountability. The center’s president, Bruce Freed, recently joined with Charles E.M. Kolb, former president of the Committee for Economic Development, to challenge allegations that the center is waging a “war” on corporate political speech.  

“This not only enhances disclosure; it also reflects a greater appreciation of the unnecessary harm and risks posed to a corporate brand that can come from focusing on political campaigns rather than on marketplace challenges,” Kolb and Freed wrote in a recent Washington Post op-ed .  

The shakiest ground for transparency opponents is in the courts. The most widely quoted line from Citizens United ruling is Justice Anthony M. Kennedy’s statement, writing for the majority , that “prompt disclosure of expenditures” permits shareholders to “determine whether their corporation’s political speech advances the corporation’s interest in making profits,” and citizens to “see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”  

That helps explain why a Colorado gun group’s recent bid to challenge the state’s disclosure rules fell flat. In Rocky Mountain Gun Owners v. Gessler, the U.S. District Court for the District of Colorado denied the group’s request that judges block enforcement of state disclosure rules that apply to issue advertisements that run on the eve of an election.  

“As the Supreme Court has repeatedly affirmed, the electorate has a keen informational interest in knowing who is speaking about candidates shortly before an election,” wrote Megan P. McAllen, an associate counsel with the Campaign Legal Center, at the time of the ruling. “Courts nationwide have recognized the same, and have overwhelmingly rejected similar legal challenges from ‘dark money’ groups seeking to influence voters without revealing the sources of their funding.”  

The conservative assault on political disclosure will continue. It remains to be seen, however, how successful it proves in the long term.  

Eliza Newlin Carney is a senior staff writer covering political money and election law for CQ Roll Call.

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