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Latest Crack at Campaign Finance Reform Not Pleasing Free-Speech Advocates

WASHINGTON – Two senators recently unveiled a bipartisan proposal that seeks to address the influx of anonymous federal election spending and bring transparency and consistency to campaign finance law.

The Follow the Money Act of 2013, sponsored by Sens. Lisa Murkowski (R-Alaska) and Ron Wyden (D-Ore.), would require corporations, special-interest groups, and super PACs to disclose their spending on political campaigns. Wyden has been a firm supporter of campaign finance reform, pushing for greater disclosure in election spending following the Citizens United decision in 2010.

“These reforms reflect the belief that where there’s significant campaign spending, everyone has to play by the same rules and that voters deserve to know where the money is coming from and where it’s going,” said Wyden in a press conference to announce the bill. “This will bring an end to the most flagrant abuses that have made a mockery of campaign finance and tax law.”

The current disclosure of independent spending requires some business models to make significant disclosures while others are required nearly none. The bill’s aim is to close loopholes in federal spending election campaign law by creating a universal system of disclosure for independent spending irrespective of the spender, or as the bill’s text describes it, “disclosure, for disclosure’s sake.”

Republicans blocked a similar bill, the Disclose Act, last July introduced by Senate Democrats over concerns that the legislation favored labor unions and other groups while requiring corporations to disclose their campaign spending.

“What you’re seeing in this proposal that is different than you have seen in the Disclose Act that was before the Senate last summer and then prior to, is that this is a bill designed to be bipartisan,” said Murkowski.

Murkowski, who along with her fellow GOP senators opposed the Disclose Act, noted that the Follow the Money Act is “a bill that is designed to be even across the board, absolutely transparent in all aspects of it.”

During the press conference, the Alaska senator alluded to her 2010 campaign in which she had to win reelection as a write-in candidate after she lost the Republican primary to a Tea Party-backed candidate.

“We’ve all had to go through an election,” Murkowski said. “Some of us have been the beneficiaries of some of this independent expenditure activity. Some of us have been on the receiving end of some pretty directed campaigns.”

Under the bill, small spenders are subject to lesser requirements in concurrence with court decisions suggesting that reporting can reduce speech by small contributors and impose burdens to First Amendment rights.

The bill would also direct the Federal Election Commission to establish a new reporting system for contributions so that the public can monitor independent spending and candidate campaign contributions in “real time.” The legislation raises the threshold for reporting of direct contributions to candidates from the low $200 to $1,000 and creates two options for groups looking to preserve donor anonymity. The bill requires any group that spends at least $10,000 on an election to disclose all of its donors who donated $1,000 or more. Currently, tax-exempt 501(c) organizations that engage in political spending have no legal obligation to reveal their donors.

In the 2010 Citizens United decision, the Supreme Court struck down a longstanding prohibition on corporate and union spending in politics. The court decision states that political spending to support individual candidates constitutes a form of protected speech under the First Amendment, and the federal government cannot deny corporations or unions the rights to spend. The court described disclosure as “a less restrictive alternative to more comprehensive regulations of speech,” and said it is essential so “citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”

More importantly, Citizens United opened the floodgates for super political action committees (PACs). Super PACs cannot contribute directly to a candidate but can run advertisements in favor or against a political candidate. Between 2008 and 2012, outside spending increased by more than 225 percent and totaled approximately $1 billion in the 2012 elections. Only a record-low 41 percent, out of a total $41 billion spent on television and radio advertisements by independent groups, was fully disclosed, according to the Center for Responsive Politics.

The American Civil Rights Union (ACLU) praised the Murkowski-Wyden bill, saying that it does many things better than competing proposals, but warned of the unintended consequences of donor disclosure.

“There is no question the public has a legitimate interest in knowing who is corruptly spending scads of cash trying to influence voters and lawmakers. Absent anonymity, some donors—on both the left and the right—will simply not donate out of the legitimate fear they will be harassed or retaliated against for their advocacy,” wrote Gabe Rottman, legislative counsel at the ACLU.

Conservatives groups also came out against the bill.

“When liberals talk about ‘transparency,’ that isn’t what they mean,” Cleta Mitchell, chairwoman of the American Conservative Union Foundation, said in a statement. “What they really want and what this bill provides is a target list of conservatives who have the temerity to contribute their after-tax dollars to support candidates and issues the left hates.”

The Center for Competitive Politics criticized the bill, saying that the lawmakers introduced the measure without any consideration of whether “it is overly burdensome and/or deters political speech protected by the First Amendment.”

“The bill would radically expand the reach of government regulation on speech critical of elected officials and force many, if not nearly all, advocacy groups to register and file burdensome reports with the federal government,” the organization said in a report.

Free-speech advocates have been the major obstacle for disclosure reform on grounds that anonymous political speech should not be infringed at any level. Sens. Mitch McConnell (R-Ky.) and Ted Cruz (R-Texas) have constantly opposed any type of campaign finance reform.

McConnell met with House Republicans last December warning them not to sign on to any bipartisan initiative requiring super PACs to disclose information about their donors more frequently. Cruz said last year that current campaign finance laws should end to allow unlimited donations to campaigns.

“Whenever Congress acts in the area of political speech, there’s a touch stone for everything we do, should be the first amendment to the Constitution. And I think that the public should be particularly skeptical when you have elected politicians of either part enacting rules limiting the ability of public citizens to criticize the behavior of their elected officials,” Cruz said recently during a Senate hearing on campaign finance reform.