Guest opinion: Court outsources responsibility for election transparency

2014-04-04T11:05:00Z 2014-04-04T18:05:05Z Guest opinion: Court outsources responsibility for election transparencyBy EDWIN BENDER The Billings Gazette
April 04, 2014 11:05 am  • 

The U.S. Supreme Court decisions in both McCutcheon and Citizens United placed great faith in “robust” federal campaign-finance disclosure as an antidote to the corrupting influences of political donations and expenditures.

The problem is, this relies on a faulty view of today’s reality in the 50 states. And we know, based on Citizens United, that McCutcheon will ripple down to the state level.

The court asserts that, "Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time Buckley, or even McConnell, was decided.’’

Yet state disclosure systems are fragmented, offer incomplete information or in some cases no information at all. The agencies are dependent on lawmakers who control the agency purse strings, and many government disclosure systems are hopelessly mired in 20th century technology. (Yes, some states still accept disclosure reports on paper forms.)

No searchable database

The 50 different disclosure agencies in the 50 states implement 50 different sets of disclosure laws with 50 different types of reports and 50 different sets of reporting dates. The National Institute on Money in State Politics’ website, cited to support the Court’s "click of the mouse’’ assertion, was formed and is privately funded precisely because there is no governmental website that presents a verifiable, searchable, 50-state record of money in politics. It’s a massive job.

Much work remains to be done before the public can be fully informed about how money affects the political process — and subsequent public policy — to both bring disclosure of political campaign-related donations and expenditures up to 21st century standards, and to illuminate all the interests that are participating in the public policy processes.

This point is vitally important, since the court thinks that "quid pro quo corruption’’—otherwise known as bribery and usually involving the FBI when it's found out — should be the tipping point for campaign-finance laws that intersect with our First Amendment rights to free speech. Between that bright line and the billions of private dollars spent developing public-policy agendas, planning electoral strategies, implementing those strategies, hiring lobbyists, lobbying, advising rule-making, and challenging unfavorable legislation in courts, is a level of influence-peddling worthy of a RICO investigation.

No 'robust' disclosure

And about that current "robust’’ disclosure?

The 2010 Citizens United ruling on federal campaign giving had an immediate effect on state laws, which tumbled one after another. The day after the CU ruling, institute staff began surveying state disclosure laws to determine how CU might affect future campaigns. We found that fewer than half the states even had laws that required reporting of independent expenditures and presented the data in an accessible format. To this spotty patchwork of information, add the "dark money’’ flooding into the elections process, and a desire by some to play a Russian-doll game with their donations to avoid disclosure. It’s difficult to understand how the court can possibly call this "robust’’ disclosure.

That quid pro quo corruption is the court’s line for raising concerns about the corrosive influence of campaign donations should raise serious concerns.

By relying on nonprofits like to wind through the campaign finance maze and the black hole of dark money contributions, the Supreme Court is outsourcing the government’s responsibility to ensure transparency in our democracy. That is wrong.

Edwin Bender of Helena is executive director of the National Institute on Money in State Politics.

Copyright 2015 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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