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Jewish World Review Nov. 19, 2010 / 12 Kislev, 5771 Getting disclosure of corporate political speech right By Robert Robb
http://www.JewishWorldReview.com |
There is a narrative with some currency within the left that Democrats didn't really lose the 2010 election. It was stolen by a flood of anonymous corporate money unleashed by the U.S. Supreme Court's Citizens United decision.
House Speaker Nancy Pelosi actually set up this rationale in advance of the election, when she complained: "Everything was going great and all of a sudden secret money from God knows where — because they won't disclose it — is pouring in."
The right responds that Citizens actually only allowed Republicans to level the playing field by compensating for Democratic financial advantages from the support of unions and wealthy individuals. A debate has broken out over which side actually spent more money this election cycle.
It's a silly debate. Both sides had more than enough money to get their messages to voters. Democrats are deceiving themselves if they think voters were duped by corporate cash into rejecting them.
Nevertheless, this election cycle did see more ads about candidates from difficult to discern sources than ever before. The trend is highly likely to continue and accelerate in 2012, with the presidency on the line.
So, the question is what, if anything, should be done about it?
The left, of course, would like to see Citizens reversed. Without a change in the composition of the court, that's not going to happen. So, corporations and unions, for the foreseeable future, are going to have the right to political speech about candidates.
The court, however, was quite open to disclosure requirements, practically inviting them. The prevailing opinion, written by Justice Anthony Kennedy, said: "The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way."
In reaction to Citizens, congressional Democrats tried to pass a disclosure requirement, but one that was nakedly designed to advantage them politically. The requirements were obviously intended as much to suppress corporate political speech as to reveal its source. And exemptions were carved out for Democratic-supporting organizations and ones powerful enough to thwart the Democratic attempt to tilt the playing field their way.
The only disclosure requirement that makes sense is one that covers everyone. But what sorts of activities should trigger the requirement to disclose sources of funding?
In Citizens, the court also seemed to realize that its distinction regarding express advocacy hasn't held up in the real world. The real political world is awash in ads clearly intended to influence elections by depicting candidates in a favorable or unfavorable light that don't come right out and say vote for or against them.
Trying to discern the intent of candidate-related advertising during the heat of a campaign is an impossible and dangerous task for government to undertake. The law passed in Arizona in an attempt to require disclosure of corporate candidate speech following Citizens suffers from this defect.
The only thing that is practical is to require disclosure of the source of financing for mass communications that discuss candidates during the height of election season, say in the last 60 days. That will catch up some truly issue-oriented speech during that time period and let go election-oriented speech outside it. But anything else will yield more litigation and gamesmanship than useful information for voters to weigh.
There are libertarian conservatives who believe that there is a constitutional right to both unlimited and anonymous political speech. Their hearts were lifted by a recent 10th Circuit decision striking down certain registration and disclosure requirements as applied to a small group participating in a ballot campaign.
Certainly anonymous speech was very much part of the political tradition at the county's founding. These days, however, most people think they should have a right to know who is yammering at them regarding their vote.
The U.S. Supreme Court seems poised to agree, if Congress can get around to doing what is practical and right, rather than trying to further game the system for political advantage.
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JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here.
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