Jocelyn Benson

Last Friday, across the country, thousands of citizens and grassroots organizations occupied courthouses, law firms and sidewalks calling for an amendment to the U.S. Constitution.

Why? Because two years earlier, on January 20, 2009, the United States Supreme Court struck down an important federal law that limited the ability of corporations to directly influence political campaigns.  In Citizens United v. Federal Election Commission, a slim majority of five Justices voted to expand the First Amendment protections for corporations, enabling them to spend millions of dollars on commercials and other media in an attempt to influence the outcome of elections.

In interpreting the First Amendment to find that corporations are entitled to the same sorts of free speech protections that citizens enjoy, the court notably cast aside any concern that allowing corporations to spend unlimited amounts of money on political campaigns would invite an appearance or perception of corruption.

But they premised their dismissal of the corruption concern on the idea of disclosure and transparency.  In finding that corporations now have a “right” to influence our elections, citizens, the court reasoned, also have a “right” to know who is spending what.   And, Justice Kennedy wrote in Citizens United, “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Now, two years later, we have predictably seen an increase in election spending from corporations and, now, Super-PACs.   But we have not seen significant changes in any state or federal law to mandate the type of broad, timely and meaningful disclosure requirements that Justice Kennedy endorsed in his majority opinion. And as a result, much of the millions of dollars’ worth of corporate funds spent to influence elections and elected officials remain secret, undisclosed and anonymous.

Justice Kennedy’s opinion envisioned a landscape where, in the words of Paul Ryan of the Campaign Legal Center, “Corporations get unrestrained political speech, while the electorate gets effective disclosure of who is behind that speech.”

But instead, notes Ryan, while corporations spent unknown millions in 2010 elections, and while that spending is only expected to increase in 2012 and in the future, “the ‘campaign finance system that pairs corporate independent expenditures with effective disclosure’ simply does not exist.”

Yet rather than advocate for disclosure, multiple groups have convened nationally and in several states to push for an amendment to the United States Constitution that would overturn Citizens United and altogether ban corporations from spending corporate treasury funds to influence our political process.

This long-term solution, while important, is insufficient without a short-term effort to also mandate disclosure of any corporate political spending in our elections today. Because, when a business buys an ad to sell an issue, or a candidate, voters have a right to know who is behind the camera.  Transparency is key to limiting corruption, promoting accountability and ensuring a healthy democracy.

As Dan Tokaji, co-editor of the Election Law Journal and a leading scholar on money in politics, notes that there is no “magic bullet” to overturning Citizens United.  But there are solutions – and mandatory disclosure of all corporate funds spent to influence our political process is one that state legislatures, citizens and Congress should embrace.

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