Obviously the case below hasn’t reached the terminus of the judicial gauntlet yet, and given the Citizens United ruling it’s a candidate for being overturned. But the Supreme Court will now be given the opportunity to be as good as their word. In that ruling, they said that any issues with their ruling could be solved merely with proper disclosure. They didn’t mandate disclosure, of course, and Congress could never get it together to pass the DISCLOSE Act. But now, a ruling in a Federal Election Commission case would force some level of disclosure in campaign ads:
A federal judge has struck down a Federal Election Commission ruling that allowed groups to pay for advertising in the run-up to elections while keeping their donors anonymous.
The decision could force groups that air “electioneering communications” – ads broadcast close to an election that don’t expressly advocate for a federal candidate but often stop just short – to now disclose their donors.
U.S. District Judge Amy Berman said on Friday that the FEC overstepped and “cannot unilaterally decide to take on a quintessentially legislative function” in ruling that corporations and others do not have to reveal who financed such ads.
This opens up a new avenue for campaign finance advocates. Instead of relying on the people elected in the current system to change that system, they can work through the courts, at least on the disclosure issue. This would impact any entity creating “electioneering communications” – and that’s pretty much all of them in our Wild West-style elections – to disclose donors. This wouldn’t yet cover SuperPACs, but good government groups are already gearing up for a second lawsuit for them.
I think what we’ll end up finding out at the end of the day is that transparency is not enough. It’s not enough to stop wealthy donors from giving, now that the floodgates have opened. 1%ers like Foster Friess and Sheldon Adelson have become media stars for lavishing millions on candidates in the Presidential race. They’ve fully disclosed, and I see no reason why that wouldn’t continue. This may make corporations think twice, but clearly there’s a market for huge spending on elections.
Next, we’ll find out that a disclosure document on a ream of papers somewhere, even if broadcast by the media and goo-goo groups, won’t reach the average voter, who will just see the ad. The court ruling does not mandate a “Stand By Your Ad” concept where the major donors have to be incorporated into the message.
Finally, we’ll discover that there’s no real sanction for anyone that breaks this or any other rule. The FEC is barely a functioning body at this point. They rarely fine wrongdoing at a sufficient level, and they’re simply not a check on illegal campaign behavior.
So while lawsuits forcing disclosure are a small advance – provided they are upheld in the Supreme Court – they may be so small as not to matter.