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Over at Greg Sargent's blog, Adam Serwer (who also blogs at the American Prospect) has a good post up on the GOP reaction to President Obama's executive order requiring contractors who do business with the federal government to disclose their political donations. 

I predicted the GOP would react this way in an earlier post, but I didn't expect the additional layer of irony that is John Yoo arguing for "a right to political privacy" in the Wall Street Journal. John Yoo, you'll recall, is the guy who said the President could order a village massacred. He's the guy who wrote the torture memos and argued that the fourth amendment doesn't apply to the War on Terror. That exemption was the basis for the warrantless wiretapping program exposed by the New York Times in 2005. And the final sign that Yoo is way out on a limb here is simply that Justice Antonin Scalia disagrees with him:

[R]unning a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights…

So, to recap, according to John Yoo, the American people don't have any right to privacy. The government can seize your phone records, lock you away forever, have you tortured, and whatever else seems like it might stop the terrorists. But should Uncle Sam ask contractors that stand to benefit financially from their campaign donations to disclose who they're giving to–well, that would be government overreach.

Since this issue is complicated, let me boil it down to a few key facts:

  1. The Supreme Court has explicity rejected the argument that disclosure "chills speech." When you speak using your voice, people know that it's you speaking. The same should be true when you speak using your money. 
  2. In Citizens United v. FEC, the Supreme Court specifically called for disclosure: "[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters… citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests."
  3. The Republican Party has blocked off all other avenues for protecting disclosure. The DISCLOSE Act "failed" in the Senate, as a 59-39 majority in favor of it was insuffient to overcome a Republican filibuster. And our General Counsel has written extensively about the way in which the 3-3 Republican-Democrat split in the FEC has rendered the body impotent. The executive order was hardly the preferred option.

Those three facts and the choice of John Yoo as messenger should tell you everything you need to know about the sincerity, coherence and good intentions that underlie the GOP's position on disclosure. 

Read the editorial, it's a masterwork of mendacity, a cavalcade of calumnies, a fraudulent fantasy penned by a man who shouldn't have an iota of credibility on matters of speech, privacy or democracy. On a personal note, I find the sickest thing about Yoo's editorial to be its view that the assault, imprisonment and murder of Civil Rights supporters and disclosure laws are equally injurious to our democracy. Taking a beating in the press is in no way the same as actually taking a beating

Recently a couple of stories broke about attempts to bring disclosure back into the political fundraising process. The first was about a draft executive order that will make it harder for federal contractors to use campaign finance vehicles like American Crossroads GPS to support candidates without disclosing that fact. The second article covers DCCC chairman Rep. Chris Van Hollen's (D-MD) suit against the FEC as part of an attempt to get that very same group (Crossroads GPS) to disclose its donors. 

Neither article mentions the larger context:

In 2010, a Republican filibuster doomed the DISCLOSE act in the Senate. The DISCLOSE act was a response to the Supreme Court's decision in Citizens United v FEC, and would've enacted the disclosure requirements explicitly called for by Justice Anthony Kennedy in his majority opinion. Republicans killed the bill because they knew disclosure would limit the amount of money they could raise through vehicles like Crossroads GPS. There are plenty of corporations out there that support Republicans, but not all of them are looking to be Target

With the Senate deadlocked, the FEC seemed like another route for protecting disclosure. Unfortunately, it's also paralyzed. By law, the FEC is composed of 3 Democratic and 3 Republican comissioners. As in the Senate, the Republican members of the FEC are hostile to anything that might increase disclosure and bring transparency into the system. So the FEC remains deadlocked (for more on exactly how/why this is happening, see the link above).

That context is important because, when the legislative and regulatory routes are closed down by Republican obstruction, only the courts and executive branch remain. Any right-wing vitriol directed against these measures that doesn't acknowledge the GOP's role in closing off all other routes is an attempt to deceive the audience.  

The issue of disclosure is of critical importance to our democracy. Think of it this way: speech, as most of us understand it, is associated with identifiable voices. Accordingly, if money is speech, we need to know who is speaking. When that link breaks down, it's hard for voters–and the reporters they depend on–to tell what interests are moving through our political process. The advertisements run by Mom 'n Pop Apple Pie Shop could be a underwritten by money from Big Pie, and there'd be no way for anyone to know. Ultimately, there's no way to make an informed decision about who to vote for if you don't and can't know who's backing them.

One option is to take money out of politics, but I'm not sure there's an effective way to use politics to keep money out of politics. If you accept the proposition that interest groups can affect political outcomes, then it seems only natural that they'd work to ensure their main avenue for exerting that influence isn't cut off by an act of Congress. Even if you're willing to assume a perfect piece of campaign finance legislation, you still run into the problem that the law is constantly evolving. A decision down the road that couldn't possibly have been forseen can punch a hole through even the most well-crafted campaign finance law. In fact, we just saw that very thing happen with the Citizens United decision that undermined years of precedent and opened huge gaps in McCain-Feingold. 

That reality is why ActBlue is so important. We're taking the most settled aspect of campaign finance law (the right of individuals to give to candidates) and using it as a way to demonstrate that small donors can have a powerful voice in our politics. By disclosing those donations, we're working to remove the stigma of political giving and make it an easy and regular part of American life. In the end, we're working to restore the very confidence in our political system that Republicans are actively undermining in search of an ever larger, ever less accountable grip on our political system.

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