Gorsuch is Right: Congress Should “Pass a Law” Requiring Disclosure

Congress and Dark Money

In the hearing before the Senate Judiciary Committee on Tuesday March 22, Sen. Sheldon Whitehouse (D-RI) asked Neil Gorsuch, President Trump’s Supreme Court nominee, if he would ask donors to the Judicial Crisis Network to identify themselves.

As reported by the The Hill, Whitehouse said the conservative group is spending an estimated $10 million to support the Gorsuch nomination and previously spent $7 million to oppose the nomination of Merrick Garland, President Obama’s nominee, who was never given even the courtesy of a hearing before Congress.

“It would be a politics question and I’m not, with all respect senator, going to get involved in politics,” Gorsuch told the Committee in response to Whitehouse. “If you want more disclosure, pass a law,” he said.

Whitehouse is sponsor of “The DISCLOSE Act of 2015,” currently before the Senate Rules Committee, that would require large organizations, including labor unions, corporations and non-profits, to reveal the names of persons giving more than $10,000 during an election cycle. An earlier, identical bill, failed in 2012 to garner the necessary 60 votes to override a filibuster and was defeated in a near party line vote.

On the surface, it sounds as if Gorsuch was being at once clever and evasive. In reality, he was right on the money. As TDV has written in a previous blog, there are two major kinds of money in politics:

  • Big Money / No Limits
  • Dark Money / No Accountability

The Supreme’ Court’s decision in Citizens’ United (and similar cases) opened the flood gates to big money without limits, and that is a big problem that needs to be addressed by overturning Citizens’ United. But that could take years, if not decades, especially with Republicans in control of the White House and several more vacancies potentially coming up over the next several years.

In the meantime, let’s be clear.

As Gorsuch suggested, Congress has the power to require transparency in political donations – to shine a light on “Dark Money” – but it has failed to fully exercise that power.

In short, Federal legislation has not kept pace with a rapidly changing legal landscape, resulting in big loopholes. Currently, candidates and their Super PACS are required to report major contributors. Corporations and non-profits – such as social welfare agencies and trade associations – are not.

After the original DISCLOSE Act was defeated in 2012, and as the Obama Presidency drew to a close in 2016, 155 Democrats asked the President to issue an executive order requiring government contractors to disclose their political contributions. The Obama Administration debated the issue internally, according to the NY Times, but ultimately failed to act.

Maybe that was because the defense industry, the biggest of the so-called “government contractors,” is an equal opportunity donor to Republicans and Democrats alike, according to OpenSecrets.org.

Whatever the reason, the flood of both big money and dark money into politics is undermining the foundations of our democracy, as previously discussed in TDV’s “A Call to Action.”.

For starters, Democrats should redouble their efforts in Congress to pass The DISCLOSE Act requiring full disclosure of all campaign contributions from whatever source.

It may not pass in the current Congress, but it would help keep the issue, where it belongs, at the forefront of public debate. There is no excuse whatsoever for a lack of accountability in political contributions.

We Have a Right to Know and Congress Has a Duty to Act.