As outside groups from both sides of the political aisle invest hundreds of millions of dollars in the midterm elections, senators planned to try to start a debate on Thursday on a measure to unmask more donors. They are not likely to succeed.
The bill, known as the DISCLOSE Act, would require corporations, trade associations and nonprofit organizations that engage in electioneering to publicly disclose donors who contribute more than $10,000 over two years.
Democrats have pushed for more disclosure since the 2010 Supreme Court decision in the Citizens United case that led to donors being able to give unlimited amounts. Congressional Republicans have opposed it, arguing it would chill free speech, including grassroots lobbying efforts that don’t directly relate to elections.
The procedural motion on whether to take up the bill Thursday would require 60 votes and is almost certain to come up short.
“It feels like we’re living though 'Groundhog Day' if Senate Democrats are holding another vote on the DISCLOSE Act; all indications are that history will repeat itself yet again and the legislation will fail on the floor," said GOP campaign finance lawyer Michael Toner. "As a practical matter The DISCLOSE Act is dead for this Congress.”
But supporters say the vote will bring public focus to the issue, as voters become inundated with political messaging heading into the fall midterm elections. President Joe Biden offered an endorsement of the bill Tuesday, and outside advocates pushing for the bill said they would turn their focus to the administration to urge additional steps on some political disclosures if it does get blocked in the Senate.
“Right now, advocacy groups can run ads on issues, attacking or supporting a candidate right until Election Day, without disclosing who's paying for that ad,” Biden said.
Senate Minority Leader Mitch McConnell, a longtime opponent of political money regulations, said Wednesday on the floor that the measure would offer government bureaucrats “even more power to police political speech and activism of private citizens.”
Proponents of the measure said the campaign season made for good timing to put senators on the record.
“In the midst of an election cycle, the urgency is, I think, even more tangible to people who may not pay as careful attention,” said Erin Chlopak, senior director of campaign finance for the Campaign Legal Center, which supports the measure.
She added that over the past decade, groups seeking to influence elections have used corporations, including nonprofit entities, “as a vehicle to conceal the true source of money being used to influence our elections.”
The main super PACs spending in this year’s Senate races offer such examples. Though super PACs are required to disclose their donors, it’s not always clear where the money actually comes from. Senate Democrats’ leading super PAC, Senate Majority PAC, for example, discloses millions of dollars from an allied nonprofit organization, Majority Forward, which is not obligated to publicly disclose its donors.
The same is true for Senate Republicans’ leading super PAC, Senate Leadership Fund, which discloses millions from its allied nonprofit organization, One Nation. One Nation also is not obligated to disclose its contributors.
‘Trying to shut people up’
David Keating, president of the Institute for Free Speech, which opposes the bill, said the measure would chill lobbying efforts aimed at swaying lawmakers, not the outcome of elections, and that it amounts to elected officials seeking to mute criticism of themselves.
“This bill basically is trying to regulate grassroots lobbying,” he said. “They’re trying to put it under the banner that all of this is campaign-related speech, 365 days a year, for speech about legislation pending before Congress.”
Although some advocacy groups obviously fund independent expenditures aimed at influencing elections, such organizations also run ads and other messaging to persuade lawmakers to take specific positions on legislation. A liberal group may fund ads urging Democrats to take specific positions on climate legislation but don’t necessarily want those lawmakers to lose an election.
Keating also noted that the $10,000 threshold for disclosure was not indexed for inflation.
“They want to shut people up,” Keating said.
Advocates for the bill said they would continue to press for more disclosures, no matter what happens Thursday.
During the past dozen years of debate over the DISCLOSE Act, “we’ve seen a huge explosion of secret political spending,” said Lisa Gilbert, executive vice president of Public Citizen, which supports the bill.
Gilbert acknowledged that both Republicans and Democrats rely on “secret political spending” in elections but said that only Democrats are “trying to fix the problem.” She said her group would also look to the Biden administration to take steps on political disclosures, regardless of what happens in the Senate.
“The quest for disclosure shouldn't end here,” she said.