Feb. 12, 2016

Mitch McConnell Vs. Himself on Disclosure Issues

“I think you’d have to go back to Richard Nixon to find the last time you had group of people both through the campaign and through the power of the federal government really trying to harass and silence critics, and I think they need to be called on it.”

That was Senate Minority Leader Mitch McConnell (R-Ky.) talking to Fox News in his renewed public campaign against disclosure of contributors to campaigns and to groups trying to influence lawmakers and elections. It was startling to me: the Nixonian McConnell accusing proponents of transparency of Nixonian behavior. This may set a new standard for chutzpah.

McConnell’s comment was only part of his efforts; the central focus last week was his ballyhooed speech in ostensible support of the First Amendment at the American Enterprise Institute.

Regrettably, I was on an airplane when McConnell gave his speech. Had I been there, I would have tried to ask the first question. (It would not be the first time I would have asked a question that cut against the grain at AEI; commendably, no one at my institution has ever tried to dissuade me or muzzle me.)

My question, not surprisingly, would have started with McConnell’s own eloquent words repeated many times in the years leading up to the passage of the Bipartisan Campaign Reform Act in 2002, his mantra about campaign finance reform for much of his career. Namely, that Republicans are in favor of disclosure, that disclosure is the core of campaign finance reform, including disclosure for so-called electioneering communications or “issue advocacy” that is clearly designed to influence election outcomes. It would have included McConnell’s full-throated support for more and more disclosure during the debate on law. It would have asked what has changed — except the law and the presumed advantage McConnell and his partisans now have with huge and secret contributions to super PACs, 501(c)(4)s and other shadow and sham nonprofits set up to change election outcomes.

McConnell now sings a different tune, one that complains about the criticism that the poor billionaires and corporations face when their contributions to these shadow groups are disclosed.

His comment to Fox was a complaint about agencies such as the IRS enforcing their regulations and holding accountable organizations that manipulate the law to avoid lawful disclosure. In complaining that this is Nixonian, McConnell was trying to intimidate the IRS (which has long been too timid about cracking down on groups that have flaunted their clear political goals while claiming status as nonprofits that claim only modest involvement in political activities).

If I had been able to follow up, I would have included a reference to the Supreme Court’s full-throated support for full disclosure — 8-1 even in Citizens United — and to Justice Antonin Scalia’s statement in another case about the need for civic courage, for people to stand up in public for their political acts. As Scalia wrote, “Harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.”

And I would have asked why it is appropriate, even good, for powerful corporations and wealthy individuals to hide their deep involvement in political campaigns, leaving voters in the dark about who is paying millions for attack ads.

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