A decade ago, when Congress was debating the Bipartisan Campaign Reform Act, better known as McCain-Feingold, the conservative alternative to its modest tightening of regulations on political spending bore the wonderful name DeLay-Doolittle. The name represented not just the two primary sponsors—then-Reps. Tom DeLay and John Doolittle—but also what the bill would do, or not. As an alternative to restrictions on soft money and corporate spending, DeLay and Doolittle proposed to lift all existing regulations on political contributions, and replace them with a regime of immediate and complete disclosure on the Internet. DeLay and Doolittle faced two problems, however. First, its supporters soon disappeared from Congress under murky circumstances. DeLay was indicted on campaign-finance related charges in 2006 and resigned. Doolittle, deeply implicated in the Jack Abramoff scandal, left Congress in 2007. The third major supporter of the bill, Rep. Bob Ney, served 17 months in prison connected to the Jack Abramoff scandal. The second problem with DeLay and Doolittle was that its supporters didn’t mean a word of it. They didn’t want to disclose their donors and outside backers any more than they wanted to limit them—after all, they went to great lengths to hide information such as their dealings with Abramoff. It was only a slick way of changing the subject.
This type of dodginess has always informed the GOP’s advocacy for campaign finance disclosure laws. The difference this year is that the cynicism has now been brought into full view. This is the first presidential election campaign, after all, since the 2010 Citizens United case, which should have given momentum to the disclosure movement. The unabashed response by conservatives, however, has been to turn against disclosure laws entirely.
In the Citizens United case, the Supreme Court not only upheld the disclosure requirements in federal campaign finance law, but also made clear that Congress and states could go further—that they could require disclosure even of expenditures that went beyond the scope of election spending that could constitutionally be limited. “Transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages,” declared the majority opinion. Decisions in Doe v. Reed, which involved anonymity of signatures on petitions, and the 2010 SpeechNow case, the DC Circuit case which most directly gave rise to SuperPACs, reaffirmed the value of disclosure as an alternative to regulation. In a law review article, Ciara Torres-Spelicy of Stetson Law School describes these cases as marking a “dramatic 180 degree turn…on the issue of the constitutionality of disclosure.” Justice Antonin Scalia has been positively florid about the democratic virtues of disclosure, writing in a concurring opinion in Doe v. Reed that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”