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Political chemistry: The legal magic that makes corporate donations disappear

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Even though the draft legislation they will be touting is being called "a nightmare" by environmentalists, representatives of chemical companies have good reasons to expect a friendly reception when they go before a House Energy and Commerce subcommittee this morning.

Some of the reasons are obvious from a perusal of public records; others, not so much.

That's because the muscle behind changing a nearly four-decade old law regulating toxic substances can't be measured solely by the multi-million-dollar lobbying budgets of corporations and trade associations that have been pushing for it. Nor can it be summed up in the thousands of dollars of campaign contributions funneled to members of the Energy and Commerce Committee by some of the very companies that will be presenting testimony today.

Sure, the powerful American Chemistry Council, a trade association that has taken the lead in lobbying for an overhaul of the 1976 Toxic Substances Control Act, has donated $11,500 to Energy and Commerce Committee Chairman Fred Upton, R-Mich., whose panel will help draft any revisions to the law. But those contributions pale in comparison to what the Chemistry Council has done for Upton in this election cycle completely under the public radar.

Late last summer -- a strategically important time in politics because it is the point in the election cycle when would-be challengers decide whether or not to take on incumbents -- the American Chemistry Council launched a highly flattering ad campaign touting Upton's leadership abilities. The ads appear to have aired in Kalamazoo and Grand Rapids, two markets that cover the veteran lawmaker's western Michigan district. An examination of ad buy records on Sunlight's Political Ad Sleuth show that the Chemistry Council spent more than $240,000 airing nearly 500 spots during three weeks in August.

Those spots are part of a much larger campaign of similar ads that the Council has been buying since the 2014 election cycle got underway last year. It's an effort that makes an important point about loopholes in campaign finance law that allow significant political favors to be done outside of the public eye.

Even though the ads for Upton, along with those for 17 other members of Congress, are described on the Chemistry Council's YouTube site as "Support for" the candidates, they have never been reported to the Federal Election Commission. The Chemistry Council's reported "independent expenditures" for the 2014 cycle so far: zero.

There's nothing illegal going on here: Campaign finance law says an ad that praises or criticizes a candidate by name isn't a "political" ad unless a) it airs within 30 days of a primary or 60 days of a general election or b) it "expressly advocates" for the candidate's election or defeat. The Chemistry Council's ads thread the needle by avoiding the use of the so-called magic words: vote for or vote against.

The only way we've been able to surface these expenditures is through two ad tracking tools that the Sunlight Foundation created last year out of frustration with growing amounts of political spending and influence that has been occurring outside the Federal Election Commission's purview.

  • Ad Hawk is a mobile Sunlight app that allows users to identify groups behind political ads and to learn the names of their top donors. To create this tool, our developers scrape the online sites of candidates and politically active organizations to create a database of ads. While curating this database, we first began to notice the American Chemistry Council's ad campaign.
  • Political Ad Sleuth creates an easy-to-search feed of all of the political ad buys that the Federal Communications Commission currently requires broadcasters to post online. At the moment, only stations affiliated with the top four networks (ABC, CBS, Fox and NBC) that are located in the nation's 50 largest TV markets have to post political ad buys online. That unfortunately leaves a lot of territory uncovered -- especially in a year when so many races that could determine control of Congress are occurring in states without top-50 markets, like Alaska, Arkansas, Iowa, Montana and West Virginia, to name a few.

Even so, it was Ad Sleuth that allowed us to estimate how much the Chemistry Council spent in Upton's district. It also allows us to see the tens of thousands of dollars the Chemistry Council spent late last year in New Mexico, where Sen. Tom Udall, a Democrat, is up for reelection this year. Udall, a member of the the Environmental and Public Works Committee, is an original cosponsor of the Chemical Safety Improvement Act, the Senate version of the Toxic Substances Control Act rewrite. The Chemical Council also supports that bill. Another sponsor of the bill, Sen. Kay Hagan, a North Carolina Democrat, benefited from scores of ads the Chemical Council bought in her state last summer.

Of the eight senators who have were subjects of laudatory Chemical Council ads, five are cosponsors of the Chemical Safety Improvement Act. Of the nine House members who starred in the commercials, four are members of the Energy and Commerce Committee, three are members of the Transportation Committee and one is House Majority Leader Eric Cantor.

More conventional kinds of influence are also being wielded by proponents of the toxic substance law overhaul.

The ACC CEO testifies in the House
Cal Dooley, President and CEO of the American Chemistry Council, testifies before the House Energy and Commerce Committee

House Energy and Commerce Committee member John Barrow, a Georgia Democrat perennially targeted by Republicans, has received $21,499 from the Chemistry Council, almost half of that in the last election cycle.

The Dow Chemical Employees PAC sent $2,000 to Upton in 2013. The Intel Corporation cut two $2,500 checks to Reps. Steve Scalise, R-La., and Barrow. The Environmental Health Strategy Center — the sole environmentalist group present at Wednesday's hearing — has not shown the same level of generosity to the subcommittee members. Influence Explorer has no records of state or federal contributions from the green group from 1989-2013.

Although the draft bill under consideration by House members today has yet to be introduced, lobbyists representing chemical corporations that want to see the rollback of EPA regulations have been pushing a similar measure for months in the Senate. Lobbying disclosure forms collected by Open Secrets show that the Chemical Safety Improvement Act was mentioned on three different reports by Dow Chemical's in-house lobbyists in 2013. The company has spent over $10 million total on all lobbying that year. Likewise, the Society of Chemical Manufacturers and Affiliates — an industry trade group — has been lobbying Congress on the issue since the first quarter of last year. The preliminary hearing for the House bill likely means the start of another groundswell of lobbying.

A complete list of lawmakers who benefited from American Chemistry Council ads is below. Click on their names to see the ads.

Lawmaker State Party Key Committees and leadership positions Rothenberg rating Date posted
Sen. Mary Landrieu LA D Appropriations, Energy and Natural Resources, Homeland Security, Small Business Pure Toss Up 1/16/13
Sen. Kay Hagan NC D Armed Services, Banking, HELP, Small Business Toss Up/Tilt D 8/5/13
Rep. Fred Upton MI R Energy and Commerce (chair), Safe R 8/5/13
Sen. Mitch McConnell KY R Republican Leader Lean R 8/5/13
Rep. Mike Simpson ID R Appropriations Safe R (but competitive primary) 8/5/13
Sen. Tom Udall NM D Appropriations, Joint Committee on Printing, Environment and Public Works, Foreign Relations, Indian Affairs, Rules Safe D 8/12/13
Rep. Steve Scalise LA R Energy and Commerce Safe R 8/13/13
Sen. John Thune SD R Agriculture, Commerce, Finance Not up till 2016 8/16/13
Sen. Chris Coons DE D Appropriations, Foreign Relations, Budget, Judiciary Safe D 8/19/13
Rep. Shelley Capito WV R Financial Services, Transportation and Infrastructure, Running for Senate: Lean Republican 11/6/13
Rep. Bill Shuster PA R Armed Services, Transportation, Safe R (but semi-competitive primary) 11/12/13
Rep. John Barrow GA D Energy and Commerce Lean Democrat 11/26/13
Rep. Eric Cantor VA R Majority Leader Safe R 12/5/13
Rep. Lee Terry NE R Energy and Commerce Republican favored 1/27/14
Sen. Mark Begich AK D Appropriations, Commerce, Homeland Security, Indian Affairs, Veterans Toss Up/Tilt D 1/31/14
Sen Mike Crapo ID R Banking, Environment and Public Works, Finance, Indian Affairs, Budget Not up till 2016 2/27/14
Rep. Rodney Davis IL R Agriculture, Transportation, Toss Up/Tilt R 2/5/14