If President Obama has a chance to pry open secrecy, he should, the author writes. Why is GOP fighting disclosure?

For years, campaign finance debaters all agreed on one thing: disclosure. Now President Barack Obama ponders an executive order to require federal contractors to make public their campaign spending.

Instead of cheering, the House promptly voted to oppose such a plan. Disclosure – once worthy, even boring – is now deemed scary. Yet another newly discovered threat to liberty.


The president should ignore the howls and act to impose some modest measure of accountability on the new world of secret campaign cash.

Last year, of course, Citizens United overturned the ban on direct corporate spending in campaigns. At the same time, by an 8-1 margin, the justices resoundingly endorsed disclosure.

“The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way,” the justices cheered. “This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

But after the ruling, independent spending soared in the midterm elections — and much of the new money was spent by third party groups, who refused to divulge the source of funds. Secret sources paid for one third of all independent spending. Money talks, but it doesn’t leave its name.

The best solution would be a uniform federal law to assure disclosure. Last year such a measure won wide support. It passed the House, and garnered votes of 59 senators. In this era of the permanent filibuster, however, that wasn’t enough.

The feckless Federal Election Commission could do something, but don’t hold your breath. Meanwhile, secret spenders in both parties are readying a fierce, toxic campaign for next year.

Fortunately, Obama need not wait for Congress to act. He has ample authority to protect the integrity of federal contracting with an executive order boosting transparency. Details are not final, but the plan would likely expand existing disclosure laws. Companies – still barred from making direct campaign gifts — would have to disclose campaign spending of more than $5,000, including spending through third party organizations.

This makes sense. After all, firms, understandably, have a big incentive to spend millions to influence government policymaking worth billions. Even when the spending is supposedly uncoordinated and independent, politicians in and out of the executive branch would have little doubt who paid for the shadowy ads. A lobbyist’s whispered assurance would see to that.

Only voters would be in the dark. The resulting corruption and special pleading could make us pine for the days of earmarks.

Protections like those in the executive order are already widespread. At least 17 states have laws banning “pay-to-play” campaign gifts, or requiring disclosure of spending by government contractors. Most — in states as varied as South Carolina, New Jersey and California — were adopted after scandal. No enemies’ lists ensued. Instead, trust in government has grown.

This simple anti-corruption measure would seem like a yawner, the kind of thing both parties could embrace. In fact, disclosure was principally a Republican goal in recent years, backed by those who sought to block contribution limits.

“What we ought to do is we ought to have full disclosure, full disclosure of all of the money that we raise and how it is spent,” said then Minority Leader John Boehner (R-Ohio) in 2007. “And I think that sunlight is the best disinfectant.”

Who praised “post-Watergate disclosure laws” that help “flush out” politicians who “sacrifice duties or principles to get more money”? It wasn’t Fred Wertheimer – it was Sen. Mitch McConnell (R-Ky.). In fact, for years, the very lawmakers who blocked campaign contribution limits or public financing would piously intone that disclosure is the answer.

Now, the notion of disclosure gives these same lawmakers the vapors. They warn that old-style corruption would pervade the bidding process, and fret about an imaginary White House enemies list. Sunlight, suddenly, is no longer the best disinfectant.

To be sure, as critics note, the current order doesn’t apply to organizations receiving government grants. Obama should consider a second order covering grant recipients.

But it’s ironic that skeptics in Congress condemn it for not going far enough to reach grants. Many of these same legislators last year voted against the DISCLOSE Act. That would have required disclosure from both grant recipients and contractors.

The least plausible objection is that, somehow, this would represent a thuggish presidential power grab. If Congress can’t act to protect the public interest, a chief executive would be remiss if he didn’t do what he could.

Presidents have long used executive action to improve contracting. The newfound fear of executive action by those who spent a decade in the defense of presidentially ordered waterboarding deserves, at least, a wry smile.

Wise executive action can prod a balky legislature. In the 1990s, when I worked for President Bill Clinton in the White House, we announced a plan for a similar order — requiring disclosure by contractors of lobbying expenditures. The mere threat of a presidential order helped spur passage of lobbying disclosure laws.

It is worth noting that contractors and the agencies they worked with were not wild about the idea then, either.

Next year, we can expect a tsunami of secret money into our elections. Obama says he values transparency. If he has a chance to pry open secrecy, he should. The public should know whose checkbooks are paying for all those political ads – and what favors they are seeking in return.

Michael Waldman is the executive director of the Brennan Center for Justice at New York University School of Law, and was formerly the chief speechwriter for Bill Clinton.