(The Root) — By now it's well-known that Republican-dominated efforts to impose and enforce voter-ID requirements may constitute the most pernicious and effective means of suppressing the votes of the poor, racial minorities, rural voters and the elderly since the poll tax and the literacy test.
Attorney General Eric Holder has demonstrated fierce and unwavering commitment to fighting the imposition of these requirements in states covered by the Voting Rights Act — a decision that may well underpin the recent contempt-vote absurdity led by a right wing that has been desperate to undermine the attorney general's resolve on the voter-ID issue. Civil rights and activists groups have also marshaled their resources to educate voters in states where ID laws are in force and to challenge efforts to intimidate voters under the guise of enforcing ID laws.
Holder and voting-rights activists are right to regard these voter-ID laws as a threat to democracy. It was the Supreme Court that 120 years ago first identified the right to vote as "preservative of all rights." For this reason, the Voting Rights Act has long been regarded even by those on the right as the "crown jewel" of civil rights laws.
But interfering with the ability of marginalized citizens to cast a ballot on Election Day is not the only means of disenfranchisement with which we should be concerned. Indeed, our myopic focus on barriers to voting has allowed the proliferation of far more widespread, complex and potentially irreversible disenfranchisement techniques. Among the most threatening to the effective exercise of the franchise is the door opened by the Supreme Court's widely derided Citizens United decision, which advanced the ability of corporations, unions and other groups to contribute large amounts of money to political-campaign ads (including ads for campaigns of elected state court judges).
Who's Contributing to a Political Campaign?
More disturbing still is the fact that some of the largest campaign-ad contributions from these groups will be made secretly. This means that a voter — even if unimpeded by voter-ID laws — will cast his or her ballot wearing the equivalent of a blindfold.
The voter will not know whether or to what extent corporate or union interests are behind relentless television or radio ads supporting or denouncing a candidate. It should matter to voters whether one of their congressional or judicial candidates has received this kind of substantial support from the insurance industry or from pharmaceutical corporations.
Voters may know that an ad supporting or denouncing a candidate for office in their district has been funded by a corporation calling itself Crossroads GPS, a Karl Rove-created organization that runs ads in support of Republican candidates. But voters also need to know who funds the million-dollar ad buys of Crossroads. Under current law, Crossroads is billed as an "issue advocacy" organization and need not disclose its donors — this despite its ability to spend millions targeting candidates for political office.
This secrecy is not compelled by Citizens United. Although the Supreme Court held in that case that corporations and unions cannot be limited in their political giving, nothing in the decision gives corporations the right to give secretly to campaigns. In fact, Justice Anthony Kennedy talked favorably about the importance of disclosure.
To shed more light on the sources of campaign-ad donations, Senate Democrats have proposed the Disclose Act (pdf), legislation that would require disclosure of the identity of groups spending more than $10,000 on campaign ads and donors contributing more than $10,000. This would allow voters to have information about whether and which corporations or unions are supporting candidates for public office.
But Republicans have reacted bizarrely, suggesting that corporations must be able to give to political campaigns in secret. Senate Republican leader Mitch McConnell of Kentucky has hysterically described the Disclose Act as an attempt by President Obama to "identify and punish political enemies." Others have described the law as an affront to the First Amendment and "un-American."
The GOP's Misguided Defense of Secrecy
Since when did secret campaign money become a core American value for which one of our two major political parties is willing to fight? What could be more American than demanding that voters know which individuals or groups are influencing and controlling elections? What could be better for informed voting than information that allows voters to know which interests stand behind candidates running for office?
McConnell has argued that asking groups running political ads to disclose their donors runs afoul of the Supreme Court's ruling in NAACP v. Alabama, in which the court held that the NAACP need not disclose its membership lists to state officials who were clearly bent on intimidating local support for the organization during the civil rights movement. But this is an absurd and false comparison. The Supreme Court recognized in McDonnell v. FEC that campaign disclosures are distinct from the membership-list information sought by the state of Alabama in the NAACP case — an aspect of the McDonnell case that was not overturned by the court's decision in Citizens United.
Moreover, in the NAACP case, the court recognized that the disclosure of membership lists was unrelated to the charges that the state of Alabama had levied against the NAACP. Instead, membership disclosure was likely (and perhaps designed) to expose NAACP members to serious "reprisals and threats," loss of employment and physical coercion, such that it would "induce members to withdraw" from the organization. Only a compelling interest, narrowly tailored, could support the state's petition for disclosure and overcome the right to undisturbed freedom of association. The state of Alabama failed to make such a showing in that case.
By contrast, the purposes for which disclosures are sought by the state under the Disclose Act are compelling: promoting an informed electorate, undermining the potential for corruption and narrowly tailored (applying only to donors giving more than $10,000). Moreover, it's hard to imagine how donors who give more than $10,000 for political-campaign ads are vulnerable to intimidation if their identity is disclosed.
It's no secret what's behind the Republican leadership's resistance to the Disclose Act: Citizens United has given many Republican candidates a fundraising advantage (most certainly for the presidential election), and the less voters know about how heavily corporations and other groups on the right are involved in influencing elections, the better.
It's hard to run a campaign premised on the idea that Democrats are out-of-touch elitists and Republicans are hardworking, average Americans, when voters can see for themselves the level of corporate and millionaire support that undergirds the campaign ads they see on TV. That's why it's no surprise that some top Republicans would be willing to support disclosure legislation next year, but not "in the heat of battle." In other words, let's not pass the legislation in time to allow for informed voting in this year's presidential and Senate elections.
The right to vote begins long before Election Day. It starts when voters begin to gather the information they need to make the best choices for their country, their communities and their families. Without question, every eligible voter should be permitted to cast a ballot in this year's elections.
But equally important is the right of voters to make informed decisions when they go to the polls this November. Promoting an informed electorate is an issue that both Democrats and Republicans should get behind. And voters should demand more than just the right to cast a ballot on Election Day.
Sherrilyn A. Ifill is a professor of law at the University of Maryland School of Law and a civil rights lawyer.
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