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When Anonymous Money Speaks…

Secrecy and a free, democratic government don’t mix.

–Harry S. Truman, Merle Miller, Plain Speaking

The mark of a great politician is the ability to change his/her mind.  Mitch McConnell is a great politician.  (So is Mitt Romney but that is a subject for another day.)  Mitch McConnell’s acknowledgement that he has been wrong for more than 20 years was made without reference to his earlier positions.  It was made when he gave a speech to the American Enterprise Institute on June 15th.  It showed how a mature and thoughtful senator had come to see the error of his earlier ways.  It all had to do with a piece of legislation introduced in 2010 convolutedly known as “Democracy is Strengthened by Casting Light on Spending in Elections Act” or in a less tortured form, the “Disclose Act.”

The Act would require groups that are self-identified as “social welfare organizations” that spend $10,000 or more on election related ads, to report the expenditures and would require the groups to disclose the names of donors who give them more than $10,000.  As matters now stand, donors can anonymously give unlimited amounts to those organizations that, in turn, buy advertising that pertains to the campaigns but is not coordinated with them. Had it not been for Mr. McConnell’s speech you would have thought he would enthusiastically support such legislation.

The Disclose Act was, in some respects, not unlike a bill he and Senator Harry Reid, co-sponsored in 1989.  That bill, according to an editorial in the Lexington-Herald Ledger, “would have required disclosure of independent groups or individuals who intended to spend more than $25,000 promoting or attacking a candidate.”  According to the paper’s editorial that was only one of many times Mr. McConnell spoke out in favor of openness in campaigns.  In 1990, the editorial said, he “pledged to introduce a bill that would require full disclosure of donors to multi-candidate political-action committees.”  In 1996 he supported public disclosure of all election-related spending by independent groups and contributions to political parties.  He wrote a piece for the paper in which he said, “Public disclosure of campaign contributions and spending should be expedited so voters can judge for themselves what is appropriate.”

Based on the foregoing it was a foregone conclusion that Mr. Mitchell would enthusiastically support, at a bare minimum, the provisions of the Act that says “super PACS” must disclose the identity of any donors who contribute more than $10,000 to them and also says any group that spends $10,000 or more on election ads must report that expenditure to the Federal Election Commission within 24 hours.   That provision sounds remarkably like the 1989 bill Mr. Mitchell co-sponsored with Harry Reid.

Mr. McConnell is now a different person and, as a result, his views are different.  He now believes that secrecy is what makes a democracy work.  Openness flies in the face of the 1st Amendment to the United States Constitution that guarantees freedom of speech.  People who are forced to be identified when they exercise their right to free speech may be afraid to speak, he believes.   He thinks that a person who wants to contribute $10 million to a super-PAC in order to get his speech out to the public should be able to do so secretly so as to avoid being criticized.   Mr. McConnell does not think he has changed his position for political expediency.

In his speech to the American Enterprise Institute Mr. McConnell discussed the threat to the 1st Amendment that was posed by the Disclose Act but said:  “Throughout my career I, too, have consistently called for full and timely disclosure of all contributions to candidates and parties.”  What he made plain, however, was that people who want to contribute to social welfare organizations that participate in the campaign through ads they run are entitled to remain anonymous.  Asked about Justice Scalia’s comment in a recent case that  “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed,” Mr. McConnell said he disagreed with Justice Scalia.   He said that the names of those contributing to campaigns or candidates must be disclosed but of those who contribute through the backdoor by giving to super-PACS, he does not think civic courage should be required.  He said: “I don’t think regular citizens should have to experience any courage at all to participate in the national debate.  I don’t think it ought to be required of regular citizens as a precondition of their involvement in civic discourse.”

In support of his position he quoted Justice Oliver Wendell Holmes who said:  “The best test of truth is the power of the thought itself to get accepted in the competition of the market and the best defense of this truth is still found in the sweeping command that Congress shall make no law abridging the freedom of speech.”  Justice Holmes did not suggest that anonymous speech was the best test of truth.  Mr. McConnell believes it is.  Mr. McConnell  is no Justice Holmes.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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