As we know, the DISCLOSE ACT is an effort to provide transparency and to stifle the controversial Citizens United decision. Remember, this was the opinion, which President Obama called out the Supreme Court on during the State of the Union Address. Several members of Congress, lead by my law school classmate Chuck Schumer, have introduced the DISCLOSE Act. This legislation was bound to stir up debate, but probably would have not moved too quickly if at all. This could change.

The American voters are starting to speak and they're not too happy with either party. Just last week Utah's Senator Bob Bennett lost. Senator Specter is in real trouble in Pennsylvania. In the following weeks, there could be discontent from the voters in Oregon, Arkansas, Kentucky, and Hawaii. These electoral outcomes could be far more impactful in passing the DISCLOSE Act than the actual substance of the legislation.

And then there is the Kagan factor. There is no judicial record to evaluate Kagan with, regarding her qualifications to be a Supreme Court Justice. Now make no mistake, as the first woman Dean of Harvard Law School she is a brilliant scholar and role model, but she was not a judge. However, she did argue before the Supreme Court as Solicitor General and she argued Citizens United. In part, the renewed interest in Citizens United will come from just how central this case is to her winning confirmation. These hearings must delve into the intricacies of this case because Kagan made some very intriguing arguments in this decision. When the dust settles, Kagan will be confirmed and Citizens United will remain under a critical lens.

The political fate of the DISCLOSE Act is less important than the underlying cause that triggered the need for the legislation in the first place, the Roberts activist court.

Without question, the new disclosure rules will be welcome by those both inside and outside the political sphere. Transparency is always a good thing. And, in this case, transparency is the best we can hope for in the face of a devastating decision by the Court.

President Bush and their conservative allies in Congress and in the judicial advocacy groups put a high premium on stopping what they called “activist judges.” They abhorred the thought of America’s Judges “legislating from the bench.” The premium was so high, in fact, that nominees to the U.S. Supreme Court and other federal benches were essentially required to disavow “judicial activism” before they could be confirmed by the Senate.

John Roberts, as a nominee, was against judicial activism. That is, before he was for it. Once he ascended to the Court and took over as Chief, his assurance to Congress became nothing more than news clips not worth the paper they were printed on. Justice Alito is guilty of the judicial activism two-step as well.

In the end, the campaign against “activist judges” established the extremely “activist” Court we live with today.

President Obama stands on the threshold of history with his opportunity to nominate the next member of the Supreme Court. He may have additional opportunity before his term expires. He should not bow to the Right’s inevitable charge of “activism” they will hurl at his nominees or he should at least be ready to counter the claims of “activism” with a response of “Roberts.” Only by rebalancing the court will nonsensical decisions like Citizens United come to an end.

Writing for the majority in the Bipartisan Campaign Reform Act (BCRA) decision, Justice Scalia, famously noted, "money, like water, will always find an outlet."

In the wake of McCain-Feingold, the federal election laws proved Scalia to be dead on. IEs (independent expenditure groups) and 527s (non-affiliated, independently financed "issue based campaigns") quickly arose - funded mainly by those same individuals no longer permitted to contribute "soft money" due to the new laws imposed by BCRA.

Few would contest the impact 527s have had on the political landscape. (Just ask John Kerry, who claims his "swift boating" in the 2004 presidential election cost him the presidency.)

Yet Scalia's (and Justice O'Connor's - the "moderate" who joined in writing with Scaia) point remains compelling. The Citizens' United decision, many claim, is the first step in re-introducing soft money into the political process. Those of us who tend toward a more traditional interpretation of the Constitution believe that money is speech, and regulating the flow of money to campaigns impinges on individuals' protection under the First Amendment.

That does not, however, mean there isn't room for some bipartisan agreement on moderate campaign finance reforms. Congressmen Van Hollen and Castle's bill is an important step in tightening the rules on contributions by foreign nationals as well as improving the disclosure requirements utilizing modern, real-time technology.

The DISCLOSE ACT - “Democracy is Strengthened by Casting Light on Spending in Elections Act”. How many otherwise productive staff hours were devoted to coming up with that acronym? As a piece of legislation, the DISCLOSE Act’s focus on transparency in speech likely will gain sufficient traction to become law. Some of its elements may actually survive inevitable constitutional challenge. As an effort to alter the current political discourse, however, the bill likely won’t accomplish much.

In its zeal to get in on the inter-branch fight already in progress and “undo” the Citizens United opinion, the Democratic leadership was forced to grapple with the fact that the opinion itself is couched in core Constitutional principles of speech and is therefore virtually impervious to direct legislative challenge. Rather, Senator Schumer and Congressman Van Hollen appear to have concluded that if the outright prohibition of disfavored corporate speech is unconstitutional, the preferred means to the same end is to impose sufficiently onerous disclosure requirements as to make the disfavored speech not worth its cost. Requiring corporate CEOs and tax exempt major donors to appear on expenditures with the same “stand by your ad” messages we have learned to love in campaign advertising is a nice touch along these lines. Likewise, given the drubbing TARP recipients have been receiving on the Hill recently, its not at all surprising that the proposed legislation is rumored to seek to prohibit TARP recipients from fighting back with negative independent campaign expenditures.

In the final analysis, however, the DISCLOSE Act is highly unlikely to succeed in the one arena in which its efforts enjoy public support: preventing corporations, unions and wealthy individuals from concealing their identity by funneling their money through a series of tax exempt 501(c)(4) organizations. The DISCLOSE Act can certainly regulate direct spending on political speech by mandating that corporations file disclosures, obtain shareholder approval, and use “political activities accounts” - but Congress can not pass legislation requiring that groups which do not lobby or finance such speech directly disclose their donors or membership rolls. It also can not prevent such groups from giving each other money, thereby concealing the identity of the original donor. In a 1958 case in which the State of Alabama sought to learn the identities of local NAACP members, a unanimous Supreme Court recognized that the constitutional freedom of association must include the right to associate anonymously. (check out http://en.wikipedia.org/wiki/National_Association_for_the_Advancement_of_Colored_People_v._Alabama)

The teachings of the Warren Court in NAACP v. Alabama remain unchallenged and, ultimately, will serve to prevent disclosure the DISCLOSE Act promises.

As a member of a profession that is already subject to a high degree of disclosure, I support the concept of greater transparency for campaign financing. Senator Schumer and Representatives Castle and Van Hollen should be saluted for taking the initiative to introduce legislation that seeks to increase transparency. Each of us can debate the pros and cons of the details of this upcoming bill and it is appropriate to take the time to find the legislative balance between requiring disclosure while not putting an undue burden on American entities seeking to exercise their constitutional right to free speech. My own view is that we need to think bigger. I’ve have been a longtime advocate for public financing of campaigns. The more that we can remove the perception that politics is “pay for play” the better. The Citizens United decision only makes this atmosphere worse. Rather than welcoming this opening of the campaign-finance floodgates, it places even more of a burden on the political system and will further advance the public’s negative perception that special interest money drives the motives of our public officials. The truth is that what keeps Members of Congress up at night is the needs and interests of their constituents and not campaign contributions. They really do not enjoy spending any time fundraising. So, while increased transparency is good, public funding of elections would be even better.

However one feels about the Supreme Court’s decision in Citizens United, the case triggered powerful and immediate reactions - both supportive and critical - from business and special interests, politicians, attorneys, academics, and the media. The case certainly has bearing for some trade associations and unions that want to engage in political speech. But will it really “open the floodgates” to more spending in elections, as President Obama asserted during his State of the Union address? Many campaign finance experts say the answer isn’t clear. Just because corporations and unions can spend general treasury funds to buy ads during elections doesn’t mean they will. Some companies just aren’t going to want to fund expensive political ads for a variety of reasons, and not all financial. Those that do will have to justify those expenditures to shareholders and consumers.

Nevertheless, before we know the real impact of the ruling, a legislative package of enhanced disclosures, disclaimers, foreign interest restrictions and more designed to discourage companies from funding election ads is already being pushed. There are groups on both sides of the political spectrum who worry that individuals and companies won’t donate to their organizations if their names have to be disclosed. Aside from the business groups that have already lined up against it, advocacy groups on the left, such as the Sierra Club and the Alliance for Justice, have problems with the bill too, according to the Wall Street Journal (“Disclosure of Donors Draws Fire From Left,” April 27, P. A4).

Because of the magnitude of the issues at stake, I think it would benefit the discussion if this bill went through a healthy committee process in Congress instead of being rushed to the floor before November’s elections. The Citizens United case has already provoked a lot of impulsive analysis and opinion. It seems like a prudent move to hold some hearings on this bill and let the committee process serve its purpose so that we have a dialogue on these enhanced disclosures and disclaimers and how they do or don’t discourage speech. Otherwise, the bill may look like a purely political response.

The DISCLOSE ACT is a straightforward legislative response to a gravely damaging Supreme Court decision allowing unlimited corporate spending in elections. Far from revolutionary in scope, the DISCLOSE Act provides transparency and accountability in political spending, giving voters a valuable means to discern who are the interests that fund campaign ads.

It is unpredictable how much corporate money will flood into elections in our new unregulated system, but it is reasonable to assume it will be very substantial indeed – and possibly overwhelming in selected candidate races of particular interest to a major corporation.

Even before a single dollar is spent, the threat of corporate spending in elections wields significant influence over policymakers. Imagine the enormous political pressures business lobbyists can now place on Congress as it attempts to grapple with the major economic issues of the day, with the looming prospect of being punished or rewarded through direct campaign spending by the companies subject to the regulations. Corporate influence will reach to virtually all major policies – on financial services, health care reform, climate change, trade – everything. The public, minus the enormous wealth available to corporations, will be further shut out of its own government.

The disrupting potential of unlimited corporate spending in candidate elections can easily be seen in judicial campaigns that have had few restrictions on such spending. For example, in the 2008 Wisconsin Supreme Court race, special interest groups outspent candidates four-to-one. In one particular race, the Wisconsin Manufacturers and Commerce (WMC) targeted an incumbent justice, Justice Louis Butler, because of his pro-consumer positions on the court. But instead of criticizing Butler on the issues, WMC ran an expensive TV ad campaign attacking him as “Loophole Louie” for setting criminals free. Justice Butler was defeated and replaced by a pro-business justice of WMC’s liking. As Justice Butler warned his colleagues after the election, the message is clear: “Do not vote against business interests.”

Now that five U.S. Supreme Court justices – who have never run for public office nor served as legislators – have removed all constraints against corporate spending in elections, that is exactly the message members of Congress must ponder when deciding whether to vote against the interests of Wall Street on banking regulations or against the coal industry on global warming legislation.

The DISCLOSE Act will significantly help rein in some of the damage caused by the Roberts Court. This legislative package is focused primarily on transparency: informing the public of which corporations are spending how much to promote or attack candidates. Under DISCLOSE, corporations will have to post on their web pages their political spending activity. Political associations as well as nonprofit front groups that receive corporate money to run campaign ads must disclose where that money came from. If a corporation, union, section 501(c)(4), (5), or (6) organization, or section 527 organization spend on campaign-related activity, its CEO or organization head will have to stand by the ad and say that he or she “approves this message.” Campaign spending by foreign entities will be checked. And corporations that want to win large government contracts will also be prohibited from waging campaigns for or against candidates and the legislators responsible for issuing the contracts.

These are all common sense reforms and an appropriate response to a reckless Supreme Court decision.

Very few Republicans in Congress may want to lead the charge for greater transparency and accountability in government today, but it is a charge for which many Republicans in the end will not turn their backs. Even the most strident partisan understands that, in the new world of unlimited and unregulated corporate political spending, an informed electorate needs to know who is paying how much to promote whom on the campaign trail.

The DISCLOSE Act should pass with sufficient Republican support and be signed into law by the July 4th recess.

But more can and should be done. Rep. Michael Capuano (D-Mass.) and 35 co-sponsors are promoting a Shareholder Protection Act, ensuring that a majority of all shareholders of a company must approve its political expenditures. And Reps. John Larson (D-Conn.) and Walter Jones (R-NC) and Sens. Dick Durbin (D-Ill.) and Arlen Specter (D-Pa.) are moving a congressional public financing bill that would provide candidates with the resources to offset the expected corporate onslaught. These latter measures may be somewhat more controversial, but they are needed no less.

Reform proposals like the DICLOSE Act only become laws when the public is paying attention or better yet is outraged. Polling indicates pretty clearly that Americans strongly disagree with the Supreme Court’s ruling in Citizens United and are disgusted by the pay-to-play status quo on Capitol Hill.

The stage is set and the Schumer-Van Hollen bill should pass if judged on its merits. I am hopeful that there are enough Republicans in the Senate who, when it comes to money in politics, will break with McConnell as they have in the past. Choosing not to be the original cosponsor is understandable in these hyper-partisan times; undermining transparency in government is another story.

As with any legislative fight the messaging will be vitally important. But supporters of the DISCLOSE Act begin with the advantage that the public is paying attention and the goals are simple and understandable. If the facts are not completely obscured in the debate, anyone facing the specter of an election challenge will be hard-pressed to explain to voters why they opposed sunlight in Washington.

The DISCLOSE Act, the core reaction to the overwhelmingly unpopular Citizens United decision, comes in the nick of time to protect the 2010 election from an anticipated flood of corporate spending which could skew participation. And no wonder the decision is unpopular, set on a backdrop of distaste for corporate America and Wall Street, the courts decided to significantly expand the role of the most powerful corporations in election financing. This double punch has reinforced for the American people the problems of corporate power in democracy.

Polls from the left, right and center show that few approve of the justices' ruling. In fact, a poll conducted by ABC and The Washington Post clocked eight out of ten Americans outright disagreeing.

Blunting the worst impacts of Citizens United in time to impact the 2010 races is essential for protecting American democracy. The populist support this legislation will have, coupled with the clear necessity for passage to any legislator who fears that increased corporate dollars will unduly influence races; means that the bill has a real chance of passage.

The fear many lawmakers feel in the wake of this Supreme Court opinion is justified.

Even if the money spent in 2010 by corporate America is not as astronomical as projected, it will only take one or two races where industry giants like Exxon Mobil or Goldman Sachs bring their dollars to bear and successfully influence the outcome to forever change the ease with which politicians vote their conscience. Every officeholder in the land will be keenly aware that their race could be the next to have corporate dollars thrown against it.

The reforms in the DISCLOSE Act will increase disclosure information about advertising spending from corporate sources, and create stand-by-your ad requirements for CEOs. In addition, foreign corporations with domestic subsidiaries, federal contractors and TARP recipients who have not repaid their funds will be banned from spending their money on politics.

Imagine seeing a vicious attack ad and then the face of a CEO at the end, saying: "I am the CEO of Exxon Mobil, and my company paid for this ad." This could act as a deterrent for some companies and Boards of Directors from participating in the most egregious kinds of advertising; it could even stop them from getting involved in attack ads altogether.

Although Democrats have begun this process of correcting the court's misstep, this bill clearly should receive bipartisan support. Rep Castle has taken the brave step of getting out in front and supporting reining in corporate might which could drown out the voices of regular citizens in elections; but in this era of hyper-partisanship it is hard to find others with the courage to join him.

However, the prospect of foreigners helping to elect our next Congress should be troubling to all ideological camps, and the transparency and disclosure provisions should strike a chord with anyone who cares about accountable and transparent government. Disclosure has been a mainstay among Republicans who have argued historically for more sunlight instead of more restrictions on campaign giving and spending, so whether or not they are willing to proactively cosponsor the bill, the GOP will be hard-pressed to make an argument against it. This historical precedent is just one more reason that this legislation should receive robust bipartisan support.

A final important element which should also be a part of the overall Citizens United solution, is a requirement that shareholders approve of political campaign expenditures by the corporation.

When corporations spend the money of their shareholders on campaigns, they should be promoting their shareholders' interests not merely expressing their own political views. The Shareholder Protection Act is moving alongside the DISCLOSE Act and is an important part of the overall solution to the Citizens United misstep by the courts.

The stakes could not be higher, and the DISCLOSE Act is must-pass legislation. Our democracy is truly at risk, and Congress needs to take immediate action to ensure the protection of the rights of individual citizens instead of corporations.

DISCLOSE (which stands for "Democracy is Served by Casting Light on Spending in Elections" - you know a bill is bad news when it needs a gimmicky title) is not bipartisan in any meaningful sense - there are 218 Republicans in Congress, and only Rep. Castle has signed on. The bill's lead sponsors, Democratic Congressional Campaign Committee Chair Chris Van Hollen and immediate past Democratic Senatorial Campaign Committee Chair Chuck Schumer, drafted the bill behind closed doors, rejected Republican requests for input, and now seek to move the bill without committee hearings.

Why the secrecy, and now the rush? Representative Van Hollen and Senator Schumer, along with other Democrats, have made no secret of their concern that corporations will disproportionately support Republicans, so DISCLOSE is an effort to shut them down not through the blanket prohibition struck down in Citizens United, but through excessive regulation. It's easy to see why Republicans including 20 of the 21 Republicans in Congress who voted for McCain-Feingold - haven't signed on.

Democrats argue that such regulation is needed to give the public information on political speakers, but in fact, anyone making independent expenditures is already required to identify themselves in the ads, and to file reports with the Federal Election Commission on their spending. Meanwhile, while they simultaneously argue for an immigration amnesty, Democrats fan the flames of xenophobia, warning that without the added regulation of DISCLOSE "foreign corporations" will exert influence in U.S. elections - even though the law already prohibits foreign nationals from any involvement in U.S. elections. Meanwhile, the Democrats abandon decades of Congressional policy of treating corporations and unions similarly, singling out only corporations for much of this regulation (such as the provisions on U.S. affiliates of foreign corporations, and provisions regulating government contractors). Virtually every provision in the bill is ripe for Constitutional challenge.

So whether this bill gains traction depends on whether or not Senate Republicans are prepared to let the Democrats intentionally silence what the Democrats believe will be pro-Republican speakers. I don't think the GOP is that stupid.

Meanwhile, it should be noted that polls show that the public overwhelmingly supports the Court's decision in Citizens United when it is pointed out that the government's position was that it had the right to censor books and movies. A poll conducted by my organization, the Center for Competitive Politics, found that by a 3 to 1 margin voters agree with the Supreme Court that Citizens United was constitutionally entitled to air and advertise a movie about Hillary Clinton, actions the government sought to prohibit. Democrats think that at a minimum, they've got a political winner here if Republicans block the bill, but if Republicans swing back aggressively and demonstrate that this is yet another Democratic attempt to silence dissent, this could backfire on the Democrats, adding to their growing reputation for abuse of power.