Transparency, Accountability and the First Amendment

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From the Desk of Trevor Potter

Dear John,

Transparency in political spending is central to the non-corrupt functioning of our democracy. It is also crucial for upholding the principles of our First Amendment—always, but especially now.

The events of the past few weeks have proven illustrative. In response to the killing of George Floyd, hundreds of thousands of Americans have taken to the streets to powerfully exercise their First Amendment rights, demanding justice, a responsive government and an end to systemic racism.

Exercising their First Amendment rights, they, too, have examined the large campaign donations of wealthy special interests who many say are standing in the way of meaningful change: notably, police unions, which reports say are responsible ([link removed]) for the failure of cities to hold police accountable for violence.

In this instance, we do have transparency: we know how much police unions are spending on elections ([link removed]) .

Because members of the public can see how much police unions are spending, they can meaningfully exercise their First Amendment rights and call attention to it. Elected representatives are now having to answer for it. Some are now refusing donations from those unions altogether ([link removed]) .

Transparency promotes accountability.

However, in recent years, in large part due to a well-funded, wide-ranging deregulation campaign backed by wealthy special interests, we’ve seen a collapse in transparency and the explosion of unlimited, secret spending in our elections.

Campaign Legal Center believes transparency laws are important, for a host of reasons. For example, voters can evaluate the truth of political attack ads better when they know who financed them, and voters can better hold politicians accountable when they know which wealthy special interests spent big money to put them in office.

In addition, transparency is important for combatting foreign interference. Secret foreign money, funneled through dark money nonprofit groups and front corporations, can easily spread through our election system without disclosure, ultimately undermining our nation’s self-governance.

We also believe disclosure laws promote, and are essential to, the First Amendment.

The aim of the First Amendment is to prevent tyranny — by ensuring democratic self-government and by keeping our elected leaders responsive to the people.

Groups representing those who stand to gain power from unlimited, secret spending have attacked transparency laws as an infringement on First Amendment rights of political free speech, as CLC’s Brendan Fischer and Kedric Payne examined in a recent blog post ([link removed]) .

But in reality, transparency promotes democratic self-government by ensuring everyone in the public sphere knows who’s trying to influence government decisions, and it prevents our elected officials from being responsive to secret donors, rather than to the people they are supposed to be representing.

The U.S. Supreme Court has repeatedly acknowledged such a connection. In the only impressive part of the Court's generally wrong-headed Citizens United opinion, eight Justices agreed on the importance of disclosure to our democracy. Justice Kennedy wrote ([link removed]) , "transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." (Earlier this month, the Court left in place Montana’s strong donor disclosure law ([link removed]) , which CLC supports.)

Transparency in campaign finance is not the only problem our society faces right now, but I think it is an important one. Election transparency and the principles of the First Amendment will be important for bringing about needed change in this country.

2020 has been tough and heartbreaking. I have, at the very least, been encouraged by the power of our First Amendment principles, even with everything our society faces. These principles are powerful, and they should be protected.

Rebuilding transparency in the financing of our elections will require enforcement of the rules already in place and new laws where needed. Solutions such as the DISCLOSE Act ([link removed].) have been introduced in multiple Congresses but haven’t garnered Republican support ([link removed]) . However, disclosure used to have bipartisan support, and my hope is that it will again—and that bringing real transparency to our democratic processes will help citizens advance a more just society.

Sincerely,

Trevor Potter
President, Campaign Legal Center
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