McConnell seems to suggest the Democrats’ actions are un-American, the author writes. McConnell dead wrong on DISCLOSE

Senate Minority Leader Mitch McConnell (R-Ky.) has launched a full-throated attack on the DISCLOSE Act, which Democrats are set to bring to the Senate floor on Monday. DISCLOSE supporters say it ensures transparency and accountability in U.S. elections. McConnell, however, contends it’s a vehicle for intimidation that will squelch political speech and let the Obama administration compile an “ old-school enemies list” to punish critics.

Central to McConnell’s strongest indictment is that the bill is a lawless end run to get around the Supreme Court’s Citizens United decision. McConnell seems to suggest the Democrats’ actions are not only wrong — they’re un-American.


But McConnell’s critique fundamentally mischaracterizes the relationship between the Supreme Court and other branches of our government. By intimating that it is illegitimate for the legislative and executive branches to develop policy in response to Supreme Court decisions, the Senate leader displays ignorance of the basic hydraulics in the founders’ system of separated powers.

Indeed, suggesting that enhanced disclosure undermines Citizens United takes what Justice Antonin Scalia might call “ a particularly high degree of chutzpah.” The decision endorsed robust disclosure — by a near-unanimous, 8-1 vote.

“The First Amendment protects political speech,” Justice Anthony Kennedy wrote for the majority, “and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.”

McConnell, by arguing that disclosure undermines the First Amendment, is in fact turning Citizens United on its head.

He also misrepresents the relationship between branches of government. To be sure, the role of the elected branches is distinct from that of the judiciary. It is emphatically the job of the courts to say what the law and Constitution mean, and the president and Congress may not trump the Supreme Court’s interpretation. But once the high court announces its interpretation, it is appropriate, sometimes even expected, that elected officials develop new statutes and policies that fit the new parameters.

That is exactly what Congress is seeking to do with DISCLOSE. Citizens United posited the benefits of a “campaign-finance system that pairs corporate independent expenditures with effective disclosure,” explaining that “disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”

But, because of numerous loopholes in current law, effective disclosure exists today only in theory — not reality.

The proposed law would remedy that deficiency by requiring groups that run campaign ads to disclose their major contributors — while letting donors who earmark contributions for nonpolitical purposes remain anonymous. The bill represents a clear constitutional exercise of congressional power — consistent with the guidelines laid out by the court in Citizens United.

This back-and-forth dialogue among the branches of government, driving the creation and development of law and public policy, is healthy, even essential, for democracy. This policymaking in response to Supreme Court decisions is also routine — contrary to McConnell’s specious argument.

After the court read the Civil Rights Act to limit certain gender discrimination claims, for example, Congress responded by passing the Lilly Ledbetter Fair Pay Act to extend the statute of limitations for such claims. In another case, soon after the court struck down the military commissions the Bush administration had set up to try Guantanamo detainees, Congress passed the Military Commissions Act to create new panels it hoped would pass muster before the high court.

Policymaking in the states follows the same dynamic. After the Citizens United decision, more than 10 states responded by amending their laws — many to require disclosure of the new corporate political spending that the ruling enabled.

There is nothing out of the ordinary — and certainly nothing untoward — about these or countless other examples of lawmakers responding to legal precedent. The only remarkable thing is McConnell’s contention that this legislative action is somehow illicit.

In fact, legislative responses to Supreme Court rulings can sometimes be necessary. When a court rests its decisions on a policy assumption that turns out to be wrong, elected officials have an obligation to address that discrepancy. Citizens United conditioned corporations’ right to unlimited political speech on transparency— pairing corporate spending with “effective disclosure” — so voters could better understand what groups are trying to influence their votes.

By passing DISCLOSE, Congress can ensure that reality conforms to the idealized disclosure system that the Supreme Court assumed existed.

While they’re at it, Congress should address one more Citizens United problem. The ruling allows corporations to make independent expenditures because, it said, spending wholly independent of candidate campaigns could not lead to corruption.

Unfortunately, much of the outside spending now dominating the 2012 election has come from candidate-specific super PACs, functioning like de facto arms of the candidate campaigns. About as far from “wholly independent” as can be imagined.

Congress should adopt meaningful coordination rules to police the ties between campaigns and super PACs — and ensure that groups claiming to be “independent” really are.

It is not an “end run” around a Supreme Court ruling that embraced transparency and independence for Congress to ensure transparency and independence. Despite McConnell’s ‘Chicken Little’ rhetoric, it’s what democracy is about.

Adam Skaggs is senior counsel for the Democracy Program at the Brennan Center for Justice at New York University School of Law.