On Tuesday, Judge Amy Berman Jackson of the federal district court in Washington, D.C. handed transparency advocates a victory, when she (again) struck down a deeply flawed Federal Election Commission (FEC) rule that has helped to fuel the explosion of “dark money” — political spending from unknown sources — in U.S. elections. Judge Jackson has the law and common sense on her side, but the ultimate impact of her ruling remains to be seen. The rule at issue governs “electioneering communications” (ECs) — broadcast, cable or satellite communications referring to a clearly identified federal candidate during the run-up to an election. Such ads do not explicitly advocate a candidate’s election or defeat, but the vast majority plainly are election-related. Voters deserve to know who is paying for this advocacy, and what they want from the government. Praise for a candidate from your regional chamber of commerce, for instance, merits different scrutiny than praise from a big oil company in another state. Criticism from a local veteran’s group is not the same as criticism from a faraway defense contractor.
Even the Supreme Court’s conservative majority understands this. As Chief Justice John Roberts observed in April’s McCutcheon decision, disclosure is valuable because it “arm[s] the voting public with information,” thereby preventing “the potential for abuse of the campaign finance system.” No less a foe of regulation than Justice Antonin Scalia has noted, “[r]equiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” A society that campaigns anonymously,” he continued, “does not resemble the Home of the Brave.”
For a time, those in power took such wisdom to heart. Disclosure was a centerpiece of the Bipartisan Campaign Reform Act of 2002 (a/k/a “McCain-Feingold”), after which transparency became the norm for federal elections. But then the Court decided to open the floodgates for corporate and union spending on elections and — despite its own embrace of transparency — neither Congress nor the FEC could summon the political will to update federal disclosure rules. Their inaction has left federal elections awash in dark money, even as the Supreme Court continues to extol sunlight.