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WALL STREET JOURNAL

By Dionne Searcey

OCTOBER 27,2010

Is Justice Kennedy naive? When it comes to the issue of campaign-spending disclosure, at least one critic has lobbed that charge.

In its Citizens United decision from January, the Supreme Court opened the floodgates for corporate and union money to flow into campaign coffers to pay for ads. Wrote Justice Kennedy:

With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. . . This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.

But the LA Times’s David G. Savage points out that tax law loopholes and weak enforcement policies at the Federal Election Commission have meant that corporations and rich donors can spend lavishly on campaign ads, all behind a cloak of secrecy.

“Corporate donors have been able to hide their contributions despite the opposition of shareholders and customers — the very groups cited by Kennedy,” Savage writes.

He quotes Karl J. Sandstrom, a former FEC commissioner who advises Democrats on election law: “The biggest change this year is that it is no longer possible to identify the individuals who are responsible for funding election communications.” Sandstrom called Kennedy’s opinion naive and said it reflected a “very uninformed view of how disclosure works.”

Also pointed out by Savage: that on that same day, an 8-1 majority upheld laws mandating the disclosure of campaign contributions.

But that part of the ruling has gone largely ignored.

The reasons, said Tara Malloy, a lawyer for the Campaign Legal Center in Washington, are “weaknesses in the tax law, radical under-enforcement by the FEC and the failure of Congress” to enact a new disclosure law.

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