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Impotent FEC fails to act on Disclosure Rules

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The Federal Election Commission marked this one-year anniversary of the Citizens United case by failing to do anything to provide better disclosure of runaway secret campaign spending brought about by the Supreme Court's decision. The weak-by-design Commission, governed by six commissioners evenly divided by party, could not get a majority to vote to open a rulemaking addressing the disclosure issues raised by the case. The agency’s inaction was not on final rules that would become the law of the land. The agency couldn’t even agree to put out proposed rules and let the public comment on whether the proposals would work. It’s sadly reminiscent of the filibusters used by Congress to kill the DISCLOSE Act in Congress last year. Disclosure is apparently so distasteful in some quarters that the people entrusted to make our laws can’t even discuss it, for fear there it might lead to greater transparency.

The FEC’s current disclosure rules for independent expenditure and express advocacy communications, written before the Supreme Court opened the door to vastly more corporate and union money to infiltrate campaigns, are woefully out of date. It has to be said that without Congressional action, the agency probably would not be able to provide the comprehensive disclosure Sunlight has called for. But, there is no excuse for the FEC's failure to make significant improvements to its own disclosure rules in order to respect and uphold the Court’s reasoning that, “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

The Commission noted that in the 2004 election cycle, 96 percent of organizations making electioneering communications reported their sources of funding. Even before Citizens United, that number had been shrinking due to various FEC and Court decisions. But during the 2010 elections, only 41 percent of those groups reported their sources of funding. That is an appalling and frightening statistic that is still further evidence that campaign funding has again become almost as secretive as it was in the pre-Watergate days.

In a statement, FEC chair Cynthia L. Bauerly said, "I remain hopeful that the Commission will be able to reach consensus on a Notice of Proposed Rulemaking…” It took the FEC a year to reach this point of no action. Forgive us, Chair Bauerly, if we don’t share your optimism that the FEC will succeed in creating meaningful disclosure rules before the 2012 election season begins.